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THE 


CONSTITUTION 


STATE   OF   CALIFORNIA 

ADOPTED     IN     CONVENTION,    AT     SACRAMENTO,    MARCH     3,     1879 
RATIFIED  BY  A  VOTE    OF  THE   PEOPLE   MAY   7,   1879 

EDITED  BY 

EDWARD  F.  TREAD  WELL,  LL.  B. 

THIRD  EDITION 


CONTAINING   ALL  CITATIONS   IN   CALIFORNIA  REPORTS,  VOLS.   1   TC 

158,  CALIFORNIA  APPELLATE  REPORTS,  VOLS.  1  TO  14, 

AND   ALL   AMENDMENTS   ADOPTED   TO   AND 

INCLUDING  OCTOBER   10,   1911 


SAN    FRANCISCO 

BANCEOFT-WHTTNEY  COMPANY 
1911 


Copyright,  1902 

BY 

Bancroft-Whitney  Company 
Copyright,  1907 

BY 

Bancroft-Whitney  Company 
Copyright,  1911 

BY 

Ban  CROFT- Whitney  Company 


TABLE  OF  CONTENTS. 


Pages 
Introduction v-xvii 

Table  of  Cases  Cited xix-lxxi 

Table  of  Contents  of  Constitution  of  1879. Ixxiii-lxxxiii 

Constitution  of  California  of  1879,  Annotated 1-575 

Table  of  Statutes  Declared  Unconstitutional 577-584 

Table  of  Parallel  Sections  in  Constitutions  of  1849  and 

1879 585-588 

Table  of  California  Citations  to  Constitution  of  1849 589-592 

Table  of  California  Citations  to  Constitution  of  1879 593-606 

APPENDIX: 

Constitution  of  California,  1849 609-657 

Constitution  of  the  United  States 661-690 

Treaty  of  Guadalupe  Hidalgo 691-720 

Index 721-798 

(iii) 


INTRODUCTION. 


PREFATORY  NOTE.— It  is  unnecessary  to  make 
any  extended  explanation  in  laying  before  the  Bar 
of  California  a  work  upon  the  constitution  of  Cali- 
fornia. The  edition  published  by  IMr.  Robert  Desty 
in  1879  was  excellent  in  its  time,  but  has  long  ceased 
to  be  of  practical  aid  to  the  profession.  In  prepar- 
ing this  volume,  the  aim  has  been  to  present  in  the 
most  convenient  form  the  decisions  of  our  own 
courts,  only  referring  to  the  decisions  of  other  courts 
on  subjects  which  our  own  have  left  untouched. 
While  the  main  subject  is  the  present  constitution  of 
this  state,  the  book  also  contains  the  former  constitu- 
tion, the  constitution  of  the  United  States,  and  the 
treaty  of  Guadalupe  Hidalgo. 

New  features. — Some  new  and  important  features 
are  the  following:  (1)  A  table  showing  all  statutes 
of  this  state  which  have  been  declared  unconstitu- 
tional in  whole  or  in  part.  There  are  over  one  hun- 
dred and  thirty  such  statutes  scattered  through  the 
statute  books,  and  this  is  the  first  time  any  table  of 
them  has  been  made.  (2)  A  table  of  all  California 
citations  to  either  of  the  California  constitutions. 
This  will  permit  a  hasty  examination  of  all  decisions 

(v) 


vi  INTRODUCTION. 

citingr  any  partienlar  section  of  the  constitution. 
(3)  A  table  of  parallel  sections  in  the  constitutions 
of  1849  and  1879,  which  will  also  prove  a  useful 
feature. 

Annotations. — As  to  the  form  of  the  annotations, 
the  aim  has  been  to  present  in  the  most  condensed  form 
the  principles  of  the  decisions,  rather  than  any  state- 
ment of  the  facts  of  the  cases.  In  other  words,  we 
have  attempted  something  more  than  a  mere  digest,  or 
a  hotch-potch  of  the  syllabi  of  the  decisions. 

HISTORY   OF   THE    CONSTITUTION.— California 

was  admitted  into  the  Union  of  states  September  9, 
1850.  The  first  constitution  was  adopted  in  conven- 
tion October  10,  1849,  ratified  by  the  people  Novem- 
ber 13,  1849,  proclaimed  December  20,  1849.  This 
constitution  was  amended  in  1857  and  1871,  and  the 
article  on  the  judicial  department  was  revised  in  1862. 
The  present  constitution  wan  adopted  in  convention 
March  3,  1879,  ratified  by  the  people  May  7,  1879, 
and  went  into  effect  July  4,  1879,  so  far  as  it  related 
to  election  of  ofBcers,  etc.,  and  January  1,  1880,  for 
all  other  purposes.  Various  amendments  have  been 
made  to  it  from  time  to  time,  but  no  radical  revision 
of  it  has  been  effected. 

CONSTITUTIONAL  CONSTRUCTION.— The  con- 
stitution of  this  state,  unlike  the  federal  constitution, 


INTRODUCTION.  vii 

is  not  to  be  considered  as  a  grant  of  po;ver,  but 
rather  as  a  limitation  upon  the  powers  of  the  legis- 
lature. (People  V.  Coleman,  4  Cal.  46,  60  Am.  Dec. 
581;  People  v.  Jewett,  6  Cal.  291;  People  v.  Rogers, 
13  Cal.  159 ;  People  v.  Twelfth  District  Court,  17  Cal. 
547;  Bourland  v.  Hildreth,  26  Cal.  161;  Ex  parte 
McCarthy,  29  Cal.  395.) 

It  is,  however,  to  be  considered  as  a  grant  of  power 
to  the  other  branches  of  the  government.  (People  v. 
Jewett,  6  Cal.  291.) 

Words  and  phrases. — Where  a  word,  having  a 
technical,  as  well  as  a  popular,  meaning,  is  used  in 
the  constitution,  the  courts  will  accord  to  it  its  pop- 
ular meaning,  unless  the  nature  of  the  subject  in- 
dicates, or  the  context  suggests,  that  it  is  used  in 
its  technical  sense.  (Weill  v.  Kenfield,  54  Cal.  Ill; 
Oakland  Pav.  Co.  v.  Hilton,  69  Cal.  479,  11  Pac.  3; 
Oakland  Pav.  Co.  v.  Tompkins,  72  Cal.  5,  1  Am.  St. 
Rep.  17,  12  Pac.  801;  Miller  v.  Dunn,  72  Cal.  462,  1 
Am.  St.  Rep.  67,  14  Pac.  27;  People  v.  Eddy,  43  Cal. 
331,  13  Am.  Kcp.  143.) 

Prospective  construction. — Provisions  of  the  con- 
stitution are  to  be  considered  prospective  and  not 
retrospective  unless  a  contrary  intention  clearly  ap- 
pears.    (Gurnee  v.  Superior  Court,  58  Cal.  88.) 

Reasonable  constniction. — A  construction  should  be 
adopted  which  tends  to  certainty,  security,  and  sub- 


viii  INTRODUCTION. 

stantial  justice,  in  preference  to  that  which  involves 
uncertainty,  insecurity,  and  inevitable  injustice.  (San 
Gabriel  Co.  v.  Witmer  Co.,  96  Cal.  623,  29  Pac.  500, 
31  Pac.  588,  18  L.  R.  A.  465.) 

But  where  a  provision  is  plain  and  unambiguous, 
it  cannot  be  changed  by  the  courts  to  avoid  what 
may  seem  to  be  an  absurdity  or  injustice.  (Moran  v. 
Ross,  79  Cal.  549,  21  Pac.  958.) 

All  the  provisions  of  the  constitution  must  be  read 
together,  and  effect  given  to  all  of  them.  They  must 
receive  a  practical  common-sense  construction,  and  be 
considered  with  reference  to  the  prior  state  of  the  law, 
and  the  mischief  intended  to  be  remedied.  (People 
v.  Stephens,  62  Cal.  209;  French  v.  Teschemaker,  24 
Cal.  518.) 

MEANS  OF  CONSTRUCTION— Debates  of  the  con- 
vention.— The  debates  of  the  constitutional  convention 
may  be  referred  to  for  the  purpose  of  construing  the 
provisions  of  the  constitution.  (People  v.  Chapman, 
61  Cal.  262 ;  People  v.  Stephens,  62  Cal.  209 ;  Isola  v. 
Weber,  13  Misc.  Rep.  100,  34  N.  Y.  Supp.  77;  Hig- 
gins  V.  Prater,  91  Ky.  6,  14  S.  W.  910;  State  v.  Doron, 
5  Nev.  399;  Bank  of  Woodland  v.  Pierce,  144  Cal. 
434,  77  Pac.  1012.) 

Judicial  decisions. — Where  a  provision  of  the  former 
constitution,  which  has  received  a  judicial  construc- 
tion, is  copied  into  the  new  constitution,  it  will  be 


INTRODUCTION.  IX 

presumed  that  it  was  adopted  in  view  of  that  con- 
struction. (Sharon  v.  Sharon,  67  Cal.  185,  7  Pac.  456, 
8  Pac.  709;  Thomason  v.  Ruggles,  69  Cal.  465,  11 
Pac.  20;  Lord  v.  Dunster,  79  Cal.  477,  21  Pac.  865; 
People  V.  Freeman,  80  Cal.  233,  13  Am.  St.  Rep.  122, 
22  Pac.  173;  People  v.  O'Brien,  96  Cal.  171,  31  Pac. 
45;  Morton  v.  Brodericlv,  118  Cal.  474,  50  Pac.  644; 
Ex  parte  Ahern,  103  Cal.  412,  37  Pac.  390 ;  People  v. 
Edwards,  93  Cal.  153,  28  Pac.  831;  Palache  v.  Hunt, 
64  Cal.  473,  2  Pac.  245.) 

The  mere  fact  that  a  change  is  made  in  the 
phraseology  of  such  provision  by  subsequent  revision 
will  not  be  deemed  a  change  in  the  law,  unless  such 
phraseology  evidently  purports  an  intention  to  make 
a  change.     (Hyatt  v.  Allen,  54  Cal.  353.) 

The  same  rule  applies  to  provisions  of  the  constitu- 
tion borrowed  from  the  constitutions  of  other  states, 
and  where  such  provisions  have  received  judicial  con- 
struction in  such  states,  they  are  to  be  deemed  to 
have  been  adopted  in  view  of  such  construction. 
(People  V.  Coleman,  4  Cal.  46;  People  v.  Webb,  38 
Cal.  467;  Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251.) 

The  exposition  of  the  constitution  by  the  highest 
court  in  existence  under  it,  with  regard  to  laws 
passed  while  it  was  in  force,  should  be  accepted  by 
all  succeeding  courts,  without  regard  to  their  own 
views  as  to  the  correctness  of  the  doctrine.     (Staude 


X  INTRODUCTION. 

V.  Election  Commrs.,  61  Cal.  313;  Emery  v.  Reed,  65 
Cal.  351,  4  Pac.  200;  Davis  v.  Superior  Court,  63  Cal. 
581.     See,  also,  Ferris  v.  Coover,  11  Cal.  175.) 

Legislative  construction. — Legislative  construction 
of  a  constitutional  provision  is  a  method  of  interpre- 
tation. (Moran  v.  Ross,  79  Cal.  159,  21  Pac.  547; 
San  Luis  Obispo  Co.  v.  Darke,  76  Cal.  92,  18  Pac. 
118 ;  Lord  V.  Dunster,  79  Cal.  477,  21  Pac.  865 ;  Wash- 
ington V.  Page,  4  Cal.  388;  Bank  of  Woodland  v. 
Pierce,  144  Cal.  434,  77  Pac.  1012.) 

But  this  does  not  mean  that  the  hasty  and  incon- 
siderate legislation  of  three  winters  shall  be  con- 
clusive of  the  constitutionality  of  such  legislation. 
(People  V.  Wells,  2  Cal.  198,  208.) 

The  fact  that  ever  since  the  adoption  of  the  con- 
stitution all  executive  officers  other  than  the  governor 
and  lieutenant-governor  have  been  installed  in  office 
on  the  first  Monday  after  the  first  day  of  January  is 
entitled  to  great  weight  in  the  construction  of  the 
meaning  of  the  constitution,  (People  v.  Nye,  9  Cal. 
App.  148,  98  Pac.  241.) 

Universal  practice  of  assessors  may  be  looked  to  in 
aid  of  the  construction  of  provisions  of  the  constitu- 
tion relating  to  taxation.  (Bank  of  Woodland  v. 
Pierce,  144  Gal.  434,  77  Pac.  1012.) 

POWER  TO  DECLARE  STATUTES  UNCONSTI- 
TUTIONAL,—A   government   with   no   limits   but   its 


INTRODUCTION.  XI 

own  discretion  is  not  a  constitutional  government,  in 
the  true  sense  of  the  term.     (Billings  v.  Hall,  7  Cal.  1.) 

The  constitution  is  a  law,  and  must  be  construed 
by  some  one,  and  the  judiciary  possesses  the  power 
to  construe  it  in  all  cases  not  expressly,  or  by  neces- 
sary implication,  reserved  to  the  other  departments.. 
(Nougues  V.  Douglass,  7  Cal.  65;  MeCauley  v.  Brooks, 
16  Cal.  11.) 

But  where  the  right  to  determine  the  extent  and 
effect  of  a  restriction  in  the  constitution  is  expressly 
or  by  necessary  implication  confided  to  the  legislature, 
the  judiciary  has  no  right  to  interfere  with  the  legis- 
lative construction.     (Nougues  v.  Douglass,  7  Cal.  65.) 

In  declaring  a  statute  unconstitutional,  the  court 
cannot  interfere  with  the  exercise  of  the  political 
power  of  the  legislature.  (Nougues  v.  Douglass,  7 
Cal.  65.) 

The  courts  can  declare  a  statute  unconstitutional 
only  when  the  question  arises  as  a  pure  matter  of  law 
unmixed  with  matters  of  fact.  (Stevenson  v.  Colgan, 
91  Cal.  649,  25  Am.  St.  Rep.  230,  27  Pac.  1089,  14 
L.  R.  A.  459.) 

Therefore,  the  constitntionality  of  la  statute  can 
be  determined  only  from  the  facts  appearing  upon  the 
face  of  the  law,  taken  in  connection  with  matters  of 
which  the  court  can  take  judicial  notice.  (Bourn  v. 
Hart,  93  Cal.  321,  27  Am.  St.  Rep.  203,  28  Pac.  951, 


Xii  INTRODUCTION. 

15  L.  R.  A.  431;  Stevenson  v.  Colgan,  91  Cal.  649, 
25  Am.  St.  Rep.  230,  27  Pac.  1089,  14  L.  R.  A.  459; 
Conlin  v.  Supervisors,  99  Cal.  17,  37  Am.  St.  Rep. 
17,  33  Pac.  753,  21  L.  R.  A.  474;  Fowler  v.  Peirce,  2 
Cal.  165.) 

But,  while  the  courts  may  declare  statutes  uncon- 
stitutional, they  have  no  power  to  avoid  the  effects 
of  nonaction  on  the  part  of  the  legislature.  (Myers 
V.  English,  9  Cal.  341.) 

Presumption  of  constitutionality. — An  act  of  the 
legislature  is  presumed  to  be  constitutional.  (In  re 
Madera  Irr.  Dist.,  92  Cal.  296,  27  Am.  St.  Rep.  106, 
28  Pac.  272,  675,  14  L.  R.  A.  755 ;  People  v.  Hayne,  83 
Cal.  Ill,  17  Am.  St.  Rep.  217,  23  Pac.  1,  7  L.  R.  A. 
348;  In  re  Finley,  1  Cal.  App.  198,  81  Pac.  1041;  In 
re  Bunkers,  1  Cal.  App.  61,  81  Pac.  748;  Title  etc. 
Restoration  Co.  v.  Kerrigan,  150  Cal.  289,  119  Am. 
St.  Rep.  199,  88  Pac.  356;  In  re  Spencer,  149  Cal. 
396,  117  Am.  St.  Rep.  137,  86  Pac.  896,  9  Ann.  Cas. 
1105;  Southern  Cal.  L.  Co.  v.  Peters,  3  Cal.  App.  478, 
86  Pac.  816.) 

A  statute  will  not  be  declared  unconstitutional, 
except  when  the  conflict  between  it  and  the  constitu- 
tion is  palpable  and  incapable  of  reconciliation. 
(Stockton  etc.  R.  R.  Co.  v.  Stockton,  41  Cal.  147; 
People  V.  Sassovich,  29  Cal.  480.) 


INTRODUCTION.  Xlll 

Where  there  is  a  reasonable  doubt  as  to  its  con- 
stitutionality, its  constitutionality  should  be  affirmed. 
(University  of  California  v.  Bernard,  57  Gal.  612 ; 
Bourland  v.  Hildreth,  26  Cal.  161.) 

An  act  is  to  be  so  construed,  if  possible,  as  to  make 
it  constitutional.  (French  v.  Teschemaker,  24  Cal. 
518.) 

Conflict  with  the  constitution. — In  passing  upon  the 
constitutionality  of  a  statute,  the  court  is  not  re- 
quired to  imagine  some  possible  contingency  in  which 
its  provisions  might  conflict  with  the  constitution. 
(Woodward  v.  Fruitvale  Sanitary  Dist.,  99  Cal.  554, 
34  Pac.  239.) 

In  order  to  declare  a  statute  unconstitutional,  it  is 
not  necessary  to  find  in  the  constitution  some  specific 
inhibition  which  has  been  disregarded,  or  some  ex- 
press command  which  has  been  disobeyed ;  but  if  the 
statute  is  contrary  to  the  first  principles  of  the  social 
compact,  it  is  void.  (Britton  v.  Board  of  Election 
Commrs.,  129  Cal.  337,  61  Pac.  1115,  51  L.  R.  A.  115.) 

Nor  is  it  necessary  to  find  some  specific  inhibition 
which,  in  precise  language,  refers  to  the  particular 
law.     (People  v.  Lynch,  51  Cal.  15,  21  Am.  Rep.  677.) 

But  the  courts  cannot  declare  a  law  void  upon  the 
ground  that  it  is  contrary  to  the  "spirit  and  policy 
of  the  constitution,"  unless  it  is  at  variance  with 
some  express  or  clearly  implied  provision  of  that  in- 


xiv  INTRODUCTION. 

strument.     (Colien  v.   Wright,  22  Cal.  293;  Pattison 
V.  Yuba  Co.,  13  Cal.  175.) 

Conflict  with  another  statute.— The  constitutionality 
of  one  act  cannot  be  tested  by  the  provisions  of  an- 
other.    (Reed  v.  Omnibus  R.  R.  Co.,  33  Cal.  212.) 

Motives. — The  motives  which  induce  legislative  ac- 
tion are  not  a  subject  of  judicial  inquiry,  and  a  legis- 
lative act  cannot  be  declared  unconstitutional  because, 
in  the  opinion  of  the  court,  it  was  or  might  have 
been  the  result  of  improper  considerations.  (People 
V.  Glenn  Co.,  100  Cal.  419,  38  Am.  St.  Rep.  305,  35 
Pac.  302;  People  v.  Bigler,  5  Cal.  23.) 

The  motives  of  the  authors  of  a  statute  are  equally 
immaterial.  (Stockton  etc.  R.  R.  Co.  v.  Stockton,  41 
Cal.  147.) 

Beneficial  character. — In  determining  the  constitu- 
tionality of  a  statute,  its  beneficial  character  cannot 
be  considered.  (Marsh  v.  Supervisors,  111  Cal.  368, 
43  Pac.  975.) 

On  the  otlier  hand,  in  construing  the  constitution, 
the  courts  are  bound  to  suppose  that  any  incon- 
veniences involved  in  the  application  of  its  provisions 
were  considered  in  its  formation,  and  accepted  as  less 
intolerable  than  those  avoided,  or  as  compensated  by 
countervailing  advantages.  (People  v.  Pendegast,  96 
Cal.  289,  31  Pac.  103.) 


INTRODUCTION.  XV 

Impracticable  statute. — A  statute  may  also  be  de- 
clared void  if  it  is  impracticable.  Thus  an  act  pro- 
viding for  the  appointment  of  three  disinterested 
freeholders  in  the  city  and  county  of  San  Francisco 
to  form  an  assessment  district,  which  might  include 
the  entire  city  and  county,  and  to  assess  the  lands  of 
the  district  for  certain  improvements,  is  void  as  im- 
practicable, since  it  would  be  impossible  to  select  dis- 
interested commissioners.  (Montgomery  Avenue  Case, 
54  Cal.  579.) 

EFFECT  OF  UNCONSTITUTIONALITY— Separa- 
ble provisions. — The  mere  fact  that  certain  provisions 
of  a  statute  are  in  conflict  with  the  constitution  does 
not  necessarily  render  the  entire  act  void.  Where  the 
court  can  see  that  an  act,  after  eliminating  all  un- 
constitutional features,  is  still  such  an  act  as  it  may 
be  presumed  the  legislature  would  have  passed  had 
it  known  such  parts  were  void,  the  remainder  may 
stand.     (Dwyer  v.  Parker,  115  Cal.  544,  47  Pac.  372.) 

If  the  different  parts  are  severable  and  independent 
of  each  other,  and  the  constitutional  provisions  are 
capable  of  being  carried  into  effect  after  the  uncon- 
stitutional part  has  been  eliminated,  and  it  is  clear 
that  it  was  the  intent  of  the  legislature  to  enact 
these  provisions  irrespective  of  the  other,  the  uncon- 
stitutional provisions  will  be  disregarded,  and  the 
statute  read   as  if  such  provisions  were   not   there. 


XVI  INTRODUCTION. 

(Hale  V.  McGettig-an,  114  Cal.  112,  45  Pac.  1049; 
Lathrop  v.  Mills,  19  Cal.  513;  French  v.  Teschemaker, 
24  Cal.  518;  Mills  v.  Sargent,  36  Cal.  379;  Christy  v. 
Supervisors,  39  Cal.  3;  McCabe  v.  Jefferds,  122  Cal. 
302,  54  Pac.  897;  Rood  v.  McCargar,  49  Cal.  117: 
Johnson  v.  Tautphaus,  127  Cal.  605,  60  Pac.  172;  Peo^ 
pie  V.  Whyler,  41  Cal.  351;  McGowan  v.  McDonald, 
111  Cal.  57,  52  Am.  St.  Rep.  149,  43  Pac.  418 ;  Cahen 
v.  Wells,  132  Cal.  447,  64  Pac.  699;  In  re  Hallawell, 
8  Cal.  App.  563,  97  Pac.  320;  In  re  Spencer,  149  Cal. 
396,  117  Am.  St.  Rep.  137,  86  Pac.  896,  9  Ann.  Cas. 
1105.) 

Inseparable  provisions. — Where  the  constitutional 
and  unconstitutional  provisions  of  a  statute  are  so  in- 
separably blended  together  as  to  make  it  clear  that 
either  clause  vv^ould  not  have  been  enacted  without 
the  other,  the  whole  act  is  void.  (San  Francisco  v. 
Spring  Valley  W.  W.,  48  Cal.  493;  Reed  v.  Omnibus 
R.  R.  Co.,  33  Cal.  212;  Orange  Co.  v.  Harris,  97  Cal. 
600,  32  Pac.  594;  Wills  v.  Austin,  53  Cal.  152;  Purdy 
V.  Sinton,  56  Cal.  133;  People  v.  Perry,  79  Cal.  105, 
21  Pac.  423;  Marsh  v.  Supervisors,  111  Cal.  368,  43 
Pac.  975;  Lathrop  v.  Mills,  19  Cal.  513;  Pioche  v. 
Paul,  22  Cal.  105.) 

If  a  provision  be  unconstitutional  it  cannot  be 
given  effect  in  part,  if  the  result  of  giving  it  such 
partial  effect  would  be  to  accomplish  a  purpose  which 


INTKODUCTION.  XVll 

the  law-making  power  never  intended,  or  wliore  the 
legislative  intent  is  doubtful.  (Robert  v.  Police 
Court,  148  Cal.  131,  82  Pae.  838.) 

Contracts  and  other  statutes. — No  repeal  by  implica- 
tion can  result  from  a  provision  in  a  subsequent 
statute,  when  that  provision  is  itself  devoid  of  con- 
stitutional force.  (McAllister  v.  Hamlin,  83  Cal.  361, 
23  Pac.  357.) 

A  contract  entered  into  in  view  of  an  act  later  held 
unconstitutional  is  not  made  under  a  mistake  of  law. 
(Cooley  V.  Calaveras  Co.,  121  Cal.  482,  53  Pac.  1075.) 

But  a  contract  entered  into  by  a  public  board  or 
officer  by  sole  authority  of  an  unconstitutional  stat- 
ute is  void,  and  not  subject  to  ratification.  (Phelan 
V.  San  Francisco,  6  Cal.  531.) 

The  legislature  may  refer  to  an  unconstitutional  act 
to  indicate  its  will  in  respect  to  a  constitutional  pur- 
pose.    (People  v.  Bircham,  12  Cal.  50.) 

An  unconstitutional  act  cannot  have  the  effect  to 
repeal  prior  acts  on  the  same  subject,  though  assuming 
to  do  so.     (In  re  Clary,  149  Cal.  732,  87  Pac.  580.) 


TABLE  OF  CASES  CITED. 


A 

Abbott  T.   Jack 417 

Abeel  v.  Clark 22,  142,  143,  144,  154,  156,  380,  529 

Abelman   v.   Booth 7 

Aberdeen  Bank  v.  Chehalis  County 502,  507 

Ackerman,  In  re 4,  372,  384 

Adams   v.    Town 214 

Adams  Express  Co.  v.  Ohio   493 

Addison  v.  Saiilnier 19,  450,  455 

Addison's    Trial 128,    130 

Aetna  Indemnity  Co.  v.  Altadena 219,  226 

Agard    v.    Shaffer 313 

Ah  Cue,  Ex  parte 102,  530 

Ah  Cheung,  Matter  of 381 

Ah  Took,  Ex  parte 32,  529,  531 

Ah  King  v.  Police  Court 143 

Ah  Pong,  Ex  parte 389 

Ah  You,  In  re 314,  377,  378 

Ahern,  Ex  parte ix,  270 

Alameda  v.   Cohen    40 

Alameda  County  v.  Dalton 479 

Albion  Piiver  R.  R.  Co.  v.  Hesser 50 

Alf eritz    v.    Borgwardt 55 

Allen    V.    Allen 55 

Allgier,   In    re 238 

Allison  Ranch  etc.  Co.  v.  Nevada  Co 474 

Alvord  V.   Collins    539 

Amador  Co.  v.  Kennedy 156,  385 

American   Coal   Co.   v.   County  Commissioners 506 

Anderson   v.   Byrnes 54 

Anderson  v.  De  Urioste 315 

Anderson,    Ex    parte 97 

Andrews,   Ex  parte 6,   8,   21 

Anglo-California  Bank  v.  Field 146,  157,  430 

Angus  V.  Craven 12 

(xix) 


XX  TABLE   OF   CASES   CITED. 

Areata  v.  Areata  etc.  R.  E.   Co 314 

Argenti  v.  San  Francisco 399,  520 

Armstrong,    Ex    parte 256 

Arnault   v.   New   Orleans 150 

Arnold  v.   Van   Brunt 231 

Arroyo  Diteh  etc.  Co.  v.  Superior  Court 241 

Arwine  v.  Board  of  Medical  Examiners... 98 

Astell   V.   Phillippi 258 

Atchison,  Topeka  etc.  Ey.  Co.  v.  Los  Angeles 478 

Attorney  General,  Ex  parte 213,  224 

Auguisola   V.    Arnaz 238 

B 

Babeock    v.    Middleton 56 

Bacon    v.    Bacon 234 

Baggett  V.  Dunn 138,   139 

Bailey  r.   Sloan 230,   232 

Baird,   Matter   of 118 

Baird  v.  Monroe 40,   158 

Baker  v.  Baker  36 

Baker  v.  Fireman's  Fund  Ins.  Co 431 

Baker  v.  O'Riordan    35 

Baker  v.  Portland  530,  531 

Baker  v.    Southern   Cal.    Ey.    Co 219 

Bakersfield  &  Fresno  Oil  Co.  v.  Kern  County 452 

Baldwin   v.   Ellis 474 

Baldwin  v.  Miller  &  Lux 427 

Baldwin  v.  Zadig 168,   169 

Ball   V.   Kenfield 534 

Ballentine   v.   Willey 118 

Ballerino  v.  Bigelow 247,  257,  259 

Banaz  v.  Smith 40,  52,  316,  392,  408,  462 

Bank  v.  Pacific  Coast  S.  S.  Co 418 

Bank  of  British  North  America  v.  Madison 430 

Bank  of  California  v.   San  Francisco 452 

Bank  of  Commerce  v.  Seattle 502 

Bank  of  Lemoore  v.  Fulgham 35,  189 

Bank  of  Martinez  v.  Hemme  etc.  Land  Co 422 

Bank  of  Mendocino  v.  Chalf ant 453 

Bank  of  Redemption  v.  Boston 503 

Bank  of  Sonoma  v.  Fairbanks 386,  422 


TABLE   OF   CASES    CITED.  XXI 

Bank  of  UldaTi   v.   Reed 469 

Bank  of  Willows  v.  County  of  Glenn 466 

Bank  of  Woodland  v.  Pierce   viii,  x,  467 

Bank  of  Yolo  v.  Sparry  Flour  Co 431 

Barnes  v.  Daveck 219,  226 

Barnes   v.   Jones 142 

Barney  v.  McCreery 120,  195 

Barnitz   v.   Beverly 58 

Barrett-Hicks   Co.   v.   Glas 542 

Barry,   Ex  parte 17 

Barton  v.  Kalloch 304,  549,  561 

Bateman  v.  Superior  Court 234 

Bates    V.    Gregory 55 

Bates   V.   Porter 56 

Baum   V.   Raphael 149 

Baxter,   In   re 364 

Beach   v.   Von   Detten 150 

Beals  V.  Amador  Co 96,  246,  459 

Beals   V.   Supervisors 300 

Beaton  v.   Reid 521 

Beatty   v,   Gillbanks 18 

Becker  v.  Superior  Court 231,  234 

Beckman   v.   Skaggs 59,  468 

Begerou,   In  re 24 

Belcher  v.  Chambers    35 

Belcher  v.  Farren  523 

Bell  V.  Crippen 232 

Bell  V.  Superior  Court   38 

Bell  V.  Wyman    538 

Belser  v.  Allman    40 

Bennett  v.  Beadly 542 

Benninger,  Ex  parte    385 

Bergevin  v.  Curtz   72 

Beveridge  v.  Lewis 48 

Bickerdike  v.  State 157,  174,  520 

Bickerstaff,  In  re 385 

Biddle  v.  Oaks    458 

Bidwell  V.  Babcock    419 

liicnconrt  v.  Parker 123,  132 

Bienenfeld  v.  Fresno  etc.  Co 218 

Bigelow  V.  Ballerino    44 

Bilby  V.  McKenzie 400 


Xxii  TABLE   OF    CASES   CITED. 

Billings,  Estate  of .•     ^2 

Billings  V.  Hall    ^'  -iln 

Billings  V.  Harvey   •   1^0 

Bird,  Ex  parte 6,       8 

Bishop  V.  Oakland    •  •  •  •   549 

Bishop  V.  Superior  Court 229,  ^42 

Blair  v.  M.  etc.  R.  R.  Co 433 

Blakeslee  v.  Hall •  •  •  •   412 

Blanc  V.  Bowman    202,  204 

Blanc  V.   Rodgers 275 

Blanchard  v.  Hartwell   355,  358 

Blanding  v.  Burr   97,  173,  459 

Bledsoe's  Case   123 

Blood  V.  McCarthy 391 

Bloss  V.  Lewis  20,  155,  165,  302,  309 

Board  v.  Nye 102,  139,  166 

Board  of  Directors  v.  Tregea 41 

Board  of  Education  v.  Board  of  Trustees 387 

Board  of  Education  v.  Fowler   287 

Board  of  Education  v.  Hyatt  284 

Board  of  Education  v.  McMahan HI 

Board  of  Railroad  Commrs.  v.  Market  St.  Ry.  Co 443 

Board  v.  Supervisors 99 

Board  of  Supervisors  v.  Blacker  118,  119 

Boca  etc.  R.  R.  v.  Sierra  Valleys  R.  R 44,  405,  433 

Boca  Mill  Co.,  The  v.  Curry 411,  424 

Boedefeld  v.  Reed .^.  .   240 

Boggs  v.  Ganeard 54,  157,  523 

Bohen,  Ex  pa  rte  382 

Bohn   V.  Pacific  Electric  Ry.   Co 12 

Bolton  V.  Landers 217 

Bonner  v.  Besterling   573 

Boorman  v.  Santa  Barbara   36 

Booth  v.  McGuiness  HI 

Borello  v.  Superior  Court 15 

Borland  v.  Nevada  Bank 417 

Boston  Min.  etc.  Co.,  Matter  of 142 

Bosv.'ell,  Ex  parte   375 

Bottle  Mining  &  Milling  Co.  v.  Kern 220 

Bourland  v.  Hildreth vii,  xiii,  73,     77 

Bourn  v.  Hart   xi,   1 73,  175 

Bowen,  In  re  238,  239 


TABLE   OF    CASES    CITED.  XXUl 

Boyd  V.  Soutliern  Cal.  lly.  Co 243 

Beyer  v.  Beyer 505,  507 

Boys'  &  Girls'  Aid  Society  v.  Reis 21,  139,  198,  287,  391 

Bradford  v.  San  Francisco 400 

Bradley  v.  Clarke 535 

Bradley  t.  Kent   231 

Bradley  v.  Peojjle 504 

Brady  v.  King  39,  388 

Brady  v.  Times-Mirror  Co 431 

Brandenstein  v.  Hoke 41 

Braun,  Ex  parte   318 

Brazell  v.  Zeigler   Ill 

Bresee  v.  Los  Angeles  Traction  Co 2G9 

Breslin,  In  re    236 

Brewster  v.  Ludekins  270 

Brickell  Co.,  John,  v.  Siitro 466 

Britton  v.   Board  of  Election  Coninirs xiii,  65,   67,  76 

Brock  V.  Bruce   242 

Brodie  v.  Campbell  250,  534 

Bronhan  v.  Story 4,  46,  47 

Brooks  V.  Fischer 95,  355,  357 

Brooks  V.  Hyde    IS,   19,  22 

Brooks  V.  Melony    185,  192 

Brooks  V.  Union  Trust  Co 214 

Brown  v.  Campbell    249 

Brown  v.  Merrill   416,  418 

Brown  v.  Nash    121 

Brown  v.  Rice 241 

Brown  v.  Supervisors    44 

Brown    v.    Visalia 284 

Browne  v.  Dexter 73 

Brown's   Case 132 

Bruch  V.  Colombet   20,  163,  281 

Brumagin  v.  Tillinghast    455 

Brummaffim  v.  Spencer 259 

Buck  V.  "Eureka 370,  400,  401 

Builders'  Su[iply  DejKJt  v.  O'Connor 5^^  159 

Bulger,  In  re 535 

Bunkers.  In  re xii,  80,  149,  180,  413 

Burbridge  v.  Lemmert 469 

Burgoyne  v.  Supervisors, 79,  81,  212 

Burko  V,  Badlam 456,  457 


XXIV  TABLE  OP   CASES   CITED. 

Burke  v.  Board  of  Trustees 310,  358 

Burke,  Ex  parte 8,  21,  153,  154 

Burke  v.  Maze 216 

Burleigh,  Matter  of 130 

Burnett  v.  Sacramouto   45,  461,  462 

Burns  v.  Superior  Court 83,  198 

Burr  V.  Carbondale 372 

Burton,  Estate  of  236,  237 

Bush  V.  Linsey    237 

Bush  ▼.  Nye 251,  253 

Buswell  V.  Supervisors 475 

Butte  County  v.  Merrill 148,  177 

Byrne  V.  Drain 315,  316,  318 

C 

Cahen  r.  Wells xvi,  545 

Cahill,  Estate    of 222 

Cahill.  Ex  parte 27 

Caldwell  v.  Center 267 

California  etc.   Co.  v,  Mecartney 465 

California  etc.  Co.  v.  Superior  Court 246 

California  etc.  Co.  v.  Weis 467 

California  Fruit  etc.  Co.  v.  Superior  Court 562 

California  &  Northern  Ey.  v.  State 533 

California  Southern  R.  R.  Co.  v.  Kimball 50 

California  State  Bank  v.   Webber 469 

California  State  Tel.  Co.  v.  Alta  Tel.  Co 64,  412 

California  S.  Co.  v.  San  Francisco 477 

Campbell,  Estate  of 149,  156 

Campbell,  Ex    parte 375,  380 

Campbell  v.  Board  of  Supervisors 544 

Campbell  v.  Free 540 

Campe  v.  Lassen 229 

Camron  v.   Kenfield 223,  245 

Canadian  etc.  B.-^nk  v.  Boas 468 

Canfield  v.  County  of  Los  Angeles 451 

Carey   v.   Tice 521 

Cariaga  v.  Dry  den 224,  258 

Carpenter  v.   Furrey 147,  155 

Carrillo,  In  re 314 

Carson  v.  Central  Pac.  R.  R.  Co 45 

Carter,  In  re 83,  198 


TABLE  OP  CASES  CITED.  XXV 

Carter  v.   Lothian. . .' 229 

Carter  v.   Superior  Court 198 

Cary  v.  Blodgett 158,  319 

Case  Plow  Works  v.  Montgomery 419 

Cashman   v.   Root 169 

Cassidy  v.  Sullivan 11,  223 

Castro  V.  Castro 235 

Castro  V.  Richard?on 238 

Caulfield  v.  Hudson 212 

Caulfield   v.   Stevens 247,  259 

Central  etc.  R.  Co.  v.  State 148 

Central  Irr.  Dist.  v.  De  Lappe 45 

Central  Irr.  Dist.,  In  re 42 

Central  Pac.  R.  R.  Co.  v.  Board  of  Equalization.  .  .452,  468,  476 

Central  Pac.  R.  R.  Co.  v,  California 492 

Central  Pac.  R.  R.  Co.  v.  Placer  Co 474 

Cerini   v.   De   Long 219,  402 

Chambers  v.  Satterlee 40,  52,  408,  401,  4G2 

Chapman   v.    Ames 40 

Chapman   v.   Morris 57 

Chapman   v.   State 174 

Chapman    v.    Stoneman 293 

Chapman   v.   Toy   Long 530 

Charge  to  Jury 68 

Chase  v.   Trout 33 

Cheney,  Ex  parte 378 

Chicago  etc.  R.  R.  Co.  v.  Haggerty 433 

Chico  High  School  Bjaard  v.  Supervisors 283 

Chin  Yan,  Ex  parte 153,  160,  377 

Chinn  v.  Gunn 308 

Chinn  v.  Superior  Court 242 

Chipman  v.  Bowman 199 

Chisholm   v.    Georgia 105 

Chrisman    v.    Anderson 120 

Christensen,  Ex  parte 375,  379 

Christian  v.  Superior  Court 232 

Christy    v.    Supervisors xvi,  305 

Church  V.   Colgan 251 

City  Nat.  Bank  v.  Paducah 505 

City  of  Los  Angeles  v.  Lelandc 149 

City  Street  Imp.  Co.  v.  Kroh 5,  G2 

Clancy,   Ex  parte 19 


Xxvi  TABLE   OF   CASES   CITED. 

Clark  V.  Brown ^l* 

Clarke,    Ex    parte •  •  •  •   ^J 

Clarke  v.   Perry •^•^'^>  ^-^o 


Clarke  v.  Rcis 


32 


Clarke's  Case   ^^ 

Clary,    In    re ^vii 

Clement's  Case    120 

Clunie  v.  feiebe 458,  474 

Clute   V.   Turner 23,   49,  158 

Coates  V.  Atchison  etc.  Ey.  Co 44 

Cody  V.  Murphcv 18,  154,  164 

Coffey  V.  Superior  Court 130,  318,  320 

Coggins  V.  Sacramento 549 

Cohen  v.  Alameda 40,  52,  408,  461 

Cohen,  Ex  parte 31 

Cohen  v.  Wright xiv,  4,  32,  54,  60,  275,  534 

Cohens  v.  Virginia ' 

Cohn  V.  Central  Pac.  R.  E.  Co 431 

Colegrove  W.  Co.  v.  Hollywood 407 

Collins  V.  Lean 32,  63,  168 

Collins  V.  Superior  Court 215 

Colton  V.  Rossi 43,  49 

Colusa  County  v.  Glenn  County 300,  545,  474 

Colusa   Co.  V.  Welch 180 

Commercial  Bank  v.  Chambers 506 

Commissioners  v.  Trustees 390,  552 

Common   Council  v.   Harrington HI 

Commonwealth  v.  Addison 130 

Commonwealth  v.  Ahl    275 

Commonwealth  v.  Hilchman 275 

Commonwealth  v.  Pyle 132 

Commonwealth  v.  Shaver 539 

Conant  v.   Conant 216,  223 

Condict  V.   Police  Court 393 

Conference  Free  Baptists  v.  Berkey 430 

Colegrove  W.  Co.  v.  Hollywood 407 

Coniff  V.  Hastings 52 

Conlin  V.  Supervisors xii,  162.  164,  166,  173,  174,  391 

Conner,  In  re 247 

Conniff  v.  San  Francisco 48 

Consolirlated  Channel  Co.  v.  Central  Pac.  R.  R.  Co 46 

Contra  Costa  W.  Co.  v.  Breed 614 


TABLE   OF   CASES   CITED.  XXVH 

Contra  Costa  etc.   Co.   v.   Moss 46 

Converse  v.  United  States 132 

Cook  V.  Cockins 5S 

Cook  V.  Middlesex 275 

Cooley  V.  Cak^ veras  Co xvii 

Copertini   v.    Opperniaun 242,  243 

Coppinger  v.  Eice 235 

Corcoran  v.  Benicia 48 

Cornett  v.  Bisliop 243 

Corralitos  etc.  Co.,  In  re 252 

Costa  V.  Superior  Court 236 

Cottle  V.  Spitzer 451 

County  of  Tehama  v.  Sisson 402 

Courtwright  v.  Bear  Rivr^r  etc.  Co 212,  235 

Cox,  Ex  parte 100 

Coxe  V.  McClcnachan 122,  123 

Coyne  v.  Rennie 359 

Cozzens  v.  North  Fork  Ditch  Co 511 

Craig  V.  Boone 394 

Craig  V.  Superior  Court 546 

Crall  V.  Poso  Irr.  Dist 45 

Crandall  v.  Blen 218 

Crawford  v.  Dunbar 131,  132,  545 

Creighton  v.  Manson 52,  4G0,  462 

Creighton  v.  Pragg 54,  55 

Creighton  v.  San  Francisco 173 

Crocker  v.  Conrey 83,  198 

Crocker  v.   Scott 452,  455 

Crockett  v.  Matthews 23,  371 

Croly  V.  Sacramento 83 

Crosby  v.  Lyon 280,  456 

Crossjnan  v.  Vivicnda  W.  Co 38 

Crow  V.  San  Joaquin  etc.  Irr.  Co 510 

Crowley  v.  Froud 322,  364 

Crutcher  v.   Kentiicky 495 

Cullcn  V.  Glendora  etc.  Co 160,  248 

Cullen  V.  Langridge 242 

Curtis,  In  re 130,  225 

Curtis  V.  Richards    199 

Curtis  V.  Sacramento    263 


XXViii  TABLE  OP   CASES   CITED. 

D 

Daggott  T.  Colgan 138 

Dailey  v.  Superior  Court 17 

Daly,  In  re 381 

Danielson  v.  Yoakum 417 

Darcy  v.  Mayor 151,  312,  313,  370 

Dashiell   v.    Slingerlaud 217,  230 

Dassler,  In  re 62 

Davenport  v.  Los  Angeles 73 

Davenport  Bank  v.  Davenport  Bd.  of  Equalization 503 

Davey  v.  Mulroy 219,  227 

David  V.  Portland  W.  Co 150 

Davidson  v.  Dallas 204 

Davidson  v.  Rankin 418 

Davidson  v.  Yon  Detten 155 

Davies  v.  Los  Angeles 36,  144,  154,  314,  391 

Davis,   Estate   of 36,  213 

Davis  V.  Superior  Court x 

Davis  V.  Whidden 127,  128 

Daw  V.  Niles 489 

Day  V.  Jones 73,  78 

De  Baker  v.  Railway  Co 47,  48,  379 

Deck  V.  Gerke 238,  239 

De  Jarnatt  v.  Marquez 232,  247,  257,  258 

De  La  Montanya  v.  De  La  Montanya 35 

Delaney,  Ex  parte 380 

Denman  v.  Broderick 158,  311,  313 

Denninger  v.  Recorder's  Court 98,  178,  379,  405 

Dennis  v.  Superior  Court 418 

Denton  y.  Vann 98,  372 

Dentzel  v.  Waklie 58,  60 

De  Puy,  Ex  pa  rte 275 

Derby  v.  Stevens 230,  232,  418 

Desanta,  In  re 375,  376 

Desmond  v.  Dunn 154,  158,  312,  315,  322,  553 

Deuprez  v.  Deuprez 240 

Devlin  v.  Anderson 78 

Dewar  v.  Ruiz 523 

Dewey  v.  Lambier 3 

De  Witt  V.  Hays 449 

]^e  Witt  V.  San  Francisco 143 

Deyoe  v.  Superior  Court 22,  148,  156 


TABLE   OF   CASES   CITED.  XXIX 

Dickev,  Ex  parte 5,  6 

Dickey  v.  Hurlburt 82,  99 

Dieh],  In  re 319,  383 

Diepenhrock  v.  Superior  Court 66,  230 

Dietrich,  Ex  parte 383 

Dinan  v.  Superior  Court 319,  358,  546 

Doane  v.  Weil 147 

Dobbins  v.  Commrs.  of  Erie  Co 7 

Dobbins  v.  Los   Angeles 381 

Dodge,  Matter  of 364 

Doherty  v.  Thayer 22a,  259 

Dolan  V.  Barnard 150 

Dolan,  Ex  parte 356,  364 

Doland  v.  Clark 401 

Doland  v.   Mooney 467 

Donahue,  Ex  parte 245 

Donahue  v.   Graham 408,  554 

Donlon  v.  Jewett 149 

Dorn  V.  Howe 562 

Dorsey  v.  Barry 242 

Dougherty  v.  Austin 19,  ICO,  307,  369 

Dougherty  v.  Bartlett 237,  239 

Dow  V.  Gould  &  Curry  etc.  Min.  Co 537 

Doyle  V.  Austin. 454,  461 

Doyle  V.  Seawrll 217 

Dressier,  Ex  parte 10 

Droxel,  Ex  parte 6,  100,  101,  168 

Drinkhouse  v.  Merritt 236 

Duke  V.  Huntington 4] 9 

Dumphy  v.   Guindon 217 

Dunne  v,   Mastick 60 

Durgin  v.  Neal 203 

Dusy  V.  Helm 270 

Dvvyer  v.  Parter xv,  20,  67,  165,  .305,  306 

E 

Eachus  V.  Los  Angeles  etc.  Ey.  Co 44,  47,  48 

Earle  v.  Board  of  Education 149,  163,  165,  281 

Eaton  V.  Brown 19 

Eckerson  v.  Des  Moines 109,  1 13 

Eddy  V.  Houghton 432 


XXX  TABLE   OP   CASES   CITED. 

Ede  V.  Cogswell 408 

Ede  V.  Knight 55^  408 

Edsall  V.  Siiort 218    257 

Edson  V.  Sontkern  Pac.  Co 435^  437'  443 

Edward's   Case    123 

Edwards  v.  Publishing  See 17 

Elam,  Ex  parte 4,  23,  33,'  34,'  '66,  166 

Elder  v.   McDougald 334 

El  Dorado  v.  Moiss 309    389 

Elizalde  v.   Murphy _'  240 

Ellis,  Ex  jiarte   9 

Eltzroth  V.   Ejan 257 

Emery  v.  Bradford 40,  52,   408,  462 

Emery  v.  Reed x 

Emery  v.  San  Francisco  etc.  Co 40,  45,  52,  408,  450,  461,  462 

Escondido  v.  Escondido 388*  471 

Escondido  High  School  Dist.  v.  Escondido  Seminary .'  166 

Erie  R.  R.  Co.  v.  Pennsylvania 500 

Evansvill3  Bf.nk  v.  Britton [   5O.5 

Exchange  Nat.  Bank  v.  Miller '   507 

Exline  V.  Smith I3    §2 

F 

Fair,  Estate  of 451^  456,  458,  467 

Fairbanks  v.  Lampkin 221 

Fairchild  v.  Doten 220 

Fanning  v.  Schammel 388 

Fargo  V.  Michigan 495 

Farmer  v.  Behmer 314^  '3Y9,  376 

Farmers'  etc.  Bank  v.  Board  of  Equalization 474 

Farmers'  Union  v.  Thresher .' 223    245 

Farnum   v.   Warner ,'  155 

Farrell  v.  Board  of  Trustees '. .  . . .   164 

Farrell  v.  Police   Commrs 545 

Farrell  v.   Portland HI 

Farrell   v.   Sacramento 545 

Fatjo  V.  Pfister '  , ',  '147]  's's/,  451 

Faym.onville  v.  McCullough ; 413 

Feillctt  V.  Engler 212 

Felchlin,  Ex  parte 379^'  3V3',  547 

Fellows  V.  Los  Angeles 51O 

Fenton,  Ex  parte 26    27 


TABLE   OF    CASES    CITED.  XXXI 

Ferguson  v.   Slieriiiau 417 

Ferris    v.    Coo ver x 

Fife,  In  re 12 

Finley,  In  re , xii,  6,  34,  154 

Fire  etc.  Commrs.,  Iti  re 275 

First  Nat.  Bank  v.  Chapman 502 

First  Nat.  Bank  v.  San  Francisco 455,  504 

First  Nat.  Bank  of  Omaha  v.  Douglas  County 5U6 

First  Nat.  Bank  of  Wilmington  v.  Herbert..' 502 

Fisher  v.   Police  Court 159 

Fisk  V.  His  Creditors 220 

Fiske,  Ex  parte 99,  380 

Fitch  V.  Supervisors 270,  513,  514 

Fitzgerald  v 212 

Flaherty,    In    re 379 

FlavelPs  Case   275 

Fleming  v.  Hance 199,  304,  320,  363 

Fletcher  v.  Prather ' 149 

Flint   V.    Wilson 241 

Hoyd  V.  Blanding 56,   59 

Foley  V.   Foley 34 

Foltz  V.  Cogswell 180 

Ford  V.  Smith 257 

Foster  v.  Police  Commrs 60,  154,  374,  379 

Fowler  v.  Pierce xii,  128 

Fox  V.  Hale  &  Norcross  etc.  Min.  Co 420 

Fox  V.  Western  etc.  R.  R.  Co 49 

Fragley  v.  Phelan 155,  315,  317,  318 

Francais   v.   Somps 145 

Frank  v.   Supervisors 322 

Frankel   v.   Deidesheimer 202 

Franklin  v.  State  Board 519 

Fraser   v.    Alexander 552 

Frazer,    Ex   parte 413 

Freeman  v.   Barnum 161,  302 

Freeman  v.    Marshall 23 

Freeman  v.    Seitz, 231 

French  v.  Davidson 22,  144,  156 

French  v.  Senate 33,  61,  115,  121,  122,  180 

French  v.  Teschemaker viii,  xiii,  xvi,  20,  325,  415,  416 

Fresno  v.    McKenzie    4  01 

Fresno  Canal  etc.  Co.  v.  Park 514 


XXXll  TABLE   OF    CASES    CITED. 

Fresno  Nat.  Bank  v.  Superior  Court 66,  243,  430 

Freud,  Estate   of   4^  239 

Friek   v.   Los   Angeles 316,'  355 

Fritts   V.    Camp 244 

Fritz  V.  San  Francisco 318 

Fuller    V.    Fuller 8 

Fulton  V.  Brannan 522,  523 

O 

Gaffney   v.    Gough 52 

Gaflford   v.   Bush 245 

Galena  R.  R.  Co.  v.  Appleby 433 

Galena  R.  R.  Co.  v.  Loomis 433 

Galindo   v.   Walter 98 

Gallagher,   Estate   of 523 

Galland  v.  Lewis 58,  60 

Garms  v.  Jensen • 469 

Garnett   v.   Brooks 364 

Garniss  v.   Superior  Court 232 

Garretson  v.  Santa  Barbara 475 

Gates   V.   Green 214 

Gavin  v.  Pacific  Coast  M.  F,  Union 429 

Gavitt   V.   Mohr 524 

Gay,  Estate  of   538 

Gee  V.  More 521^  522 

George   v.   Ransom 537 

Gerino,   Ex  parte 22,'  65,  536 

Germania  Bldg.  etc.  Assn.  v.  Wagner 541,  552 

Gerniania  etc.  Co.  v.  San  Francisco 4oG,  458,  467 

German  Sav.  etc.  Soc.  v.  Ramish 36,  40,  52^  316 

Geyer  v.   Irwin 123 

Giambonini,  Ex  parte 199,  256,  261,  313 

Gibbs   V.   Bartlett 357 

Gibbs   V.   Tally '.  ,..'.'.'.'.".*.       4 

Gieseke  v.   San  Joaquin I45 

Gillan  v.   Hutchinson 43     47 

Gillis  V.  Barnett   '56! 

Gilman  v.  Contra   Costa   Co 297 

Gihnan  v.  McClatchy ig 

Gilmer  v.  Lime  Point .'45,  '46,'  49,  50,  83 

Goldberg   v.   Thompson 523 


TABLE   OP   CASES   CITED,  XXXlll 

Goldsmith  v.   San  Francisco 399 

Goldtree  v.  San  Diego 536,  541 

Good  V.  Commou  Council  of  San  Diego 572 

Goodman   v.   Superior   Court 12 

Gordon  v.  Ross 217 

Gorman  v.  Pacific  R.  R.  Co 433 

Gorton  v.  Ferdinando 243 

Goss  V.  Steiger  Terra  Cotta  etc.  Works 268' 

Gow,   In   re 9 

Graciosa  Oil  Co.  v.  Santa  Barbara 454 

Graham  v.  Fresno 257,  363,  365 

Graham  v.  Roberts Ill,  572 

Grand  Grove  v.  Garibaldi  Grove 37 

Grangers^  Bank  v.  San  Francisco 203 

Grannis  v.  Superior  Court 240 

Green,  Ex  parte 377,  378 

Green  v.  Fresno  Co 306,  307 

Green  v.  State 192,   276 

Green  v.    Superior*  Court 245 

Green  v.  Swift 48,  102 

Greenbaum  v.  Martinez 230,   231 

Greenberg  v.  Western  Turf  Assn 6,  381 

Greencastle  etc.  Co.  v.   State 150 

Greenwood  v.  Morrison 40 

Gregg  V.  Bostwick 521,  522 

Gregory  v.   Diggs 232 

Griffin  etc.  Co.  v.  Magnolia  etc.  Co 431 

Griggs    V.    Clark 237 

Grimes  v.  Norris 235,   236 

Grimm  v.  O'Connell 474 

Griswold  v.  Pieratt 231 

Grocers'  etc.  Union  v.  Kern  etc.  Co 243,  432 

Grogan  v.  Rueckle 204 

Grogan  v.  San  Francisco 54 

Grosbois,  In   re 14 

Gross  V.  Kenfield 369,  553 

Gross  V.  Superior  Court 246 

Grumbach  v.  Lelande 23,  65,  382 

Guerrero,  In  re 310,  385,  389 

Gunter  v.  Geary 43 

Gurnee  v.  Maloney 238 


XXXIV  TABLE   OP   CxVSES   CITED. 

Giirnee  v.  Superior  Court vii,  230,  556 

Gutierrez,    Ex   parte 61 

Guy  V.    Ilerniance 80 

Guy  V.    Wasliburn 475 

H 
Haas,  In  re 238 

Hadley  v.  Dague 40,  52,  408,  461 

Hagar  v.  Supervisors 96,  461 

Haight  V.  Gay 212,  213 

Haines  v.  Forest   Grove Ill 

Hale  V.  McGettigan xvi,  115,  124,  304,  309 

Hall   V.   Eice 234 

Hallawell,  In  re xvi,  10,  144,  146,  381 

Halsted,  Ex  parte 18,  155,  308,  313,  314 

Hampton   v.   Christensen 542 

Hancock  v.  Board  318 

Hancock  v.  Burton , 245 

Hang  Kie,  In  re 21,  64,  380 

Hannah  v.   Canty 244 

Harbor  Commrs.  v.  Eedwood  Co 100 

Hardenburg  v.  Kidd 81,  82 

Harker,  Ex  parte 214 

Harmon   v.   Page 417,  420 

Harney   v.   Benson 40 

Harpending  v.  Haight 183 

Harper  v.  Freelon 241,  242 

Harper  v.  Ko we 40,  474 

Harralson  v.  Barrett 469 

Harrelson  v.  Tomich   469 

Harrier  v.  Bassf ord 37 

Harris   v.    Supervisors 142 

Harrison  v.  Colgan 214,  265,  266 

Harrison   v.   Horton 399 

Harrison  v.  Roberts 359 

Harrold    v.    Barnum 371 

Harron    v.    Harron 221 

Hart  V.  Carnall-Hopkins    Co 243,    247,    257,  259 

Hart  V.  Gaven 462 

Harter   v.   Barkley 382 

Hartman,   Ex   parte 26 


TABLE  OP  CASES   CITED.  XXXV 

Haskell,  Ex  parte 142,  384 

Hastings  v.  San  Francisco 297 

Hatch   V.    Stoneman 526 

Hatzficld   v.   Gulden 275 

Havenieyf r  v.  Superior  Court 37 

Haverstick  v.  Trudel 237 

Hay  V.  Hill 59,  466 

Hayden,  Ex  parte 6,  100,  101,  529 

Hayes,   Ex   parte 379,  548 

Haynes  v.  Treadway 58 

Heckman  v.  Swett 101 

Heilbron,  Ex  parte 380 

Heilbron  v.  Superior  Court 49 

Heinlen  v.  Phillips 218 

Heinlen   v.   Sullivan 562 

Heller  v.  People 149 

Hellman  v.  Los  Angeles 100 

Hellman  v.  Shoulteis IS,  143,  144,  149,  161 

Helm,   Ex  parte 315,  317 

Henigan   v.   Ervin 217,  221 

Henry  v.  Garden  City  Bank 468 

Hepburn  v.  School  Directors 506 

Hercules  Oil  Co.  v.  Hocknell 420 

Hercules  Water  Co.  v.  Fernandez 42 

Herd   v.   Tuohy 244 

Herrlich  v.  McDonald 204 

Hevren   v.    Reed 54 

Hewitt  V.  Board 98 

Hewitt  V.  Dean 469 

Heydenf eldt.  In  re 238 

Heydenfcldt  v.  Superior  Court 236,  238 

Heylman,   Ex    parte 383 

Hey  Sing  Teck  v.  Anderson 37 

Hibernia  S.  &  L.  Soc.  v.  San  Francisco 452 

Hickman  v.  O'Neal 199 

Hicks  V.  Bell 212 

Hicks  V.  Murray 39 

Higgins  V.  Cole 544 

Higgins  V.  Prater viii 

Higgins  V.  San  Diego 399,  400,  401 

Higgins  V.  San  Diego  Water  Co 83,  174 


XXXVl  TABLE   OF   CASES   CITED. 

High  V.  Bank  of  Commerce 36 

High  V.  Shoemaker 34,  450,  454 

Hildreth  v.  Montccito  C.  W.  Co 514 

Hill  V.   Finigan 269 

Hill  V.   Newman 259 

Hillginger  v.  Gillman Ill,  572 

Hills  V.  Exchange  Bank 505 

Hinckley,  Estate  of 538 

Hiner  v.  Hiner 219,  226 

Ho  Ah  Kow  V.  Nunan 531 

Hoban  v.  Ryan 259 

Hobart  v.  Supervisors 1,  96,  99 

Hobart  v.  Tillson 223 

Hodges,   Ex   parte 372,  383 

Hoffman  v.  Superior  Court 39,  82 

Hohn  V.  Pauly 67,  521 

Hoklf orth.  In  re 53 

Holley  V.  Orange  Co 79,  99,  460 

Holman   v.   Taylor 242,  243 

Hong  Shen,  Ex  parte 28,  376 

Hopkins  v.  Cheeseman 217 

Hopkins  v.  Duluth 110 

Hornef,  Ex  parte 147 

Hornung   v.    McCarthy 48 

Houghton,  Appeal  of  241 

Houghton  V.  Austin 40,  100,  458,  474 

Houston  V.   Williams 203 

Howland  v.  Supervisors 401,  402 

Hudson,  Estate   of ', 237 

Huffman  v.  Hall 150 

Hughes  V.  Ewing ' '  386,  459 

Hull  V.  Superior  Court , .   308 

Humbert   v.  Dunn    138,  139 

Humboldt  v.  Stern ; 369 

Humiston   v.    Shaffer 370 

Hung  Sin,  Ei  parte 10 

Hunsaker   v.   Borden 57 

Hunt  V.  Ward 418 

Huntington  v.  Curry 478 

Hurl,   Ex   parte 460 

Hutson   V.   Protection   Dist 41 


TABLE   OF   CASES   CITED,  XXXVH 

Hyatt  V.  Allen ix,  223,  458,  553 

Hyde   v.   Redding 12 

Hyman  v.  Coleman 232,  418 

I 

Indiana   Railroad    Cases 493 

Indianapolis  R.   R.  Co.  v.  Kerclieval 433 

Ingraham    v.    Weidler 12 

Ingram  v.  Colgan 101,  139,  174 

Initiative  Petition,  In  re Ill 

Initiative  State  Question,  In  re Ill 

Iron  Mountain  Co.  v.  Ilaight 127 

Isola  V.   Weber viii 

Ivory    V.    Brow^n 259 

J 

Jackson  v.  Baehr 147,  156,  318 

Jackson  v.  Whartenby 230,  231 

Jackson,  Ex  parte 65,   156,  387 

Jacobs  V.  Supervisors 512,  513 

Jacobs  V.  Walker 524 

Jenks  v.  Oakland 549 

Jennings  v.  Le  Breton 40,  52,  408,  462 

Jennings  v.  Le  Roy 48,  147,  149 

Jentzsch,  Ex  parte 6,  65,  101,  160,  166 

Jessup,  In  re 203,  213 

Johnson  v.  Bank  of  Lake 417 

Johnson  v.  Goodyear  Min.  Co 413 

Johnson  v.  Gunn 308 

Johnson  v.  Harrison 149 

Johnson  v.  Langdon 429 

Johnson  v.  San   Diego 314 

Johnson  v.  Sinionton 380 

Johnson  v.  Squires 523 

Johnson  v.  Tautphaus xvi 

Johnson  v.  Taylor 35 

Johnson  v.  Williams 402 

Johnson,  Ex  parte 380.  413 

Johnson,  In  re 257,  364 

Johnston,   In   re 408 

Jones  V.  Falvella 145 


XXXVlll  TABLE  OF   CASES   CITED, 

Jones  V.  G.  etc.  R.  R.  Co 433 

Jones  V.  Goldt ree  Bros.  Co 418 

Jones  V.  Justice's   Court 257 

Jones  V.  Morgan 177 

Jordan,  Ex  parte 159,  160,  161,  164,  165 

Junqua,  In  re 373,  381 

K 

Kadderlv  v.  Portland 104,  113 

Kalin  v.'Sutro 18,  159,  199,  256,  279,  297,  322,  556,  561,  562 

Kaiser  Land  &  Fruit  Co.  v.  Curry 19,  82,  146,  430 

Kalloch  V.  Superior  Court 14,  32,  33 

Kansas  P.  R.  R.  Co.  v.  Mower 433 

Katz  V.  Fitzgerald 76 

Kauffman   v.   Foster 538 

Kavanagh  v.  Board 32 

Keech  v.  Joplin 220,  225,  226 

Keeney,  Ex  parte 322,  374 

Keller  v.  Franklin 240 

Kellogg  V.  Howes 541 

Kelly   V.   Luning 388 

Kendrick  v.  Diamond  etc.  Min.  Co 431 

Kennedy  v.  Board   of   Education 314 

Kennedy  v.  California  Sav,  Bank 418 

Kennedy  v.  Miller 281,   315,  356 

Kcnneke,  Ex  parte 4,   22 

Kent  V.   Williams 244 

Kerckhoff  Cuzner  Mill  etc.  Co.  v.  Olmstead 59 

Kern  Co.  v.  Fay 307 

Kern  Valley  Land  Co.  v.  Kern  Co 477 

Kerrigan  v.  Market  St.  Ry.  Co 268 

Kcybers  v.  McComber 257 

Kiernan  v.  Portland 105 

Kicrnan  v.  Swan 307 

Kimberly,    Estate    of 237 

King  V.  Kutner-Goldstein  Co 258 

King,   Ex  parte 23 

Kingsbury  v.  Nye 195,  526 

Kings  County  v.  Johnson 145,  162,  245 

Kings  Co.  V.  Tulare  Co 300 

Kirkwood  v,  Soto 369 


TABLE   OF   CASES   CITED.  XXXIX 

Kitts  V.  Superior  Court 15,  16 

Knapp,  Ex  parte 382,  383 

Knight  V.  Martin 67,  305,  308 

Knowles,  Ex  parte 225 

Knowles  v.  Sandereock 416,  419,  420,  425 

Knox  V.  Los  Angeles 175 

Knutte  V.  Superior  Court 53 

KoMer,  Ex  parte 33,  142,  144 

Koppikus  V.  State  Capitol  Commrs 11,52,520 

Koser,  Ex  parte 154,   160 

Kowalsky,  In  re 17 

Krause   v.    Durbrow 166 

Krogh  V.  Pacific  Gateway  etc.  Co 432 

Kuback,   Ex   parte 3S3 

Kumbler  v.  Supervisors 165,  307 

L 

La  Societa  etc.  v.  San  Francisco 376 

La  Societe  Francaise  v.  District  Court 234 

La  Societe  Francaise,  etc.,  Matter  of 81,  IGl,  412 

Lacey,  Ex  parte 33,  373,  379 

Lacy   V.    Gunn 157 

Laf orge  v.  Magee 57 

Laguna  Drainage  Dist.  v.  Charles  Main  Co 46 

Lambert  v.  Davis 39 

Lambert,   In   re 35 

Lampe  v.  San  Francisco 48 

Lander,    Estate    of 175 

Lane,  Ex  parte 380 

Langan  v.  Langan 221 

Larew  v.   Newman 369 

Larrabee  v.   Baldwin 415,  417 

Larrabee  v.   Cloverdale 48 

Larue   v.   Davies 222 

Lassen  Co.  v.  Cone 64,  384 

Lataillade  v.   Orena 233 

Lathrop  V.  Brittain 305,  471 

Lathrop  v.  Mills xvi 

Laurel  Hill  Cemetery  v.  City  &  County  of  San  Francisco.  .  . 

374,    378,   382 

Law  V.  San  Francisco 142,  318,  402 


xl  TABLE  OF   CASES   CITED. 

Lawrence,   In   re 389 

Lawson  v.  Lawson 23,  158 

Leaoh   v.   Aitken 197 

Leake   v.   Colgan 147 

Learned  v.   Castle 556 

Leavitt  v.  Lassen  Irr.  Co 510 

Le  Breton  v.  Superior  Court 244 

Lee  V.  Southern  Pac.  R.  R.  Co 426 

Leese    v.    Clark 204 

Lehigh  Valley  R.  R.  Co.  v.  Pennsylvania 501 

Lemon,  Ex  parte 317,  356,  387 

Lent  V.  Tillson 41,  52,  391,  408,  462 

Leonard  v.  January 147 

Leoup   V.  Mobile 494 

LeTourneux  v.   Gilliss 180 

Levee  Dist.  No.  9  v.  Farmer 44 

Levinson,  In  re 204 

Levinson   v.   Boas 102 

Levy  V.  Superior  Court 30,  63,  238 

Lewis  V.  Colgan 171,  177 

Lewis  V.  County  Clerk 240 

Lewis  V.  Dunne 144,  148,  150 

Lewis  V.  Johns 537 

Lewis  V.  Southern  Pac.  R.  R.  Co 430 

Lewis  V.  Widber 399 

Lichtenstein,   Ex   parte 163 

Lick  V.  Austin 453,   457 

Liddell,  Ex  parte ix,  142,  143,  144,  145 

Linek  v.  Meikeljohn 542 

Linehan,   Ex  parte 380 

Lin  Sing  v.  Washburn 372,  529,  531 

Lionberger  v.  Rouse 502 

Litch  V.  O'Connor 219,   226 

Livermore  v.  Waite 526,  533 

Lloyd  V.  Davis 467 

Lloyd,  Ex  parte 261 

LoTigan  V.  Solano 143,  145,  164,  251.  302,  307 

Lord  V.  Dunstcr ix,  x,  225 

Lord  V.  Goldberg 217 

Lorenzen,  Ex  parte 4 

Los  Angeles  v.  Eikenberry 374,  385,  386 

Los  Angeles  v.  Gager 51 


TABLE   OF   CASES    CITED.  xli 

Los  Angeles  v,  Hance 147 

Los  Angeles  v.  Hollywood  Cem.  Assn 373,  378,  382 

Los  Angeles  v.  Kirk 284 

Los  Angeles  v.  Lamb 553 

Los  Angeles  v.  Los  Angeles  etc.  Co 460 

Los  Angeles  v.  Teed 155,  314,  391,  394,  400,  402 

Los  Angeles  Co.  v.  Lopez 309 

Los  Angeles  Co.  v.  Orange   Co 299 

Los  Angeles  Co.  v.  Spencer 84,  146,  529 

Los  Angeles  P.  B.  Co.  v.  Higgins 541 

Los  Angeles  S.  Dist.  v.  Longden 315,  319 

Lougher    v.    Soto 158 

Love   V.   Baehr 192 

Low  V.  Marysville 311 

Lowe  V.  Yolo  Co.  etc.  Co 510 

Lowenfcerg  v.  Levine 59 

Lower  Kings  River  Rec.  Dist.  No.  531  v.  McCullah 155 

Lower  Kings  River  Rec.  Dis.  No.  531  v.  Phillips 37 

Lubliner  v.  Alpers   359 

Luco  V.   De   Toro 202 

Luco  V.  Superior  Court 246 

Lukens  v.  Nye 128 

Lundy  v.  Delnias 289 

Luther  v.  Borden 103,  108,  113 

Lux  V.  Haggin 44 

Lyons  v,  California 62 

M 

Mack  V.  Jastro 391 

Mackay  v.  San  Francisco 451,  456 

Maddux  v.   Brown 524 

Madera  County  v.  Raymond  G.  Co 47 

Madera  Irr.  Dist.,  In  re xli,  41,  96,  311,  400,  433,  450,  462,  463 

Madera  R.  Co.  v.  Raymond  Granite  Co 46 

Madison  etc.  R.  R.  Co.  v.  Whiteneck 433 

Maguire,  Matter  of 66,  379,  383,  547,  554 

Mahoney  v.  American  Land  etc.  Co 511 

Maicr,  Ex  parte 101 

Maine  v.  Grand  Trunk  Ry.  Co 500,  501 

Malone  V.   Roy 58 

Malson  v.   Vaughn 217,  258 


Xlii  TABLE   OF   CASES   CITED. 

Manchester,  In  re 82 

Manley  v.  Cunningham 523 

Manning  v.  App   Con.  Gold  M.  Co 269 

Mansfield,  Ex  parte 374,  376,  389,  390 

Market  Street,  In  re 459,  461,  462 

Market  St.  Ry.  Co.  v.  Hellman 414 

Marks,  Matter  of 130,  241 

Marsh  v.  Supervisors xiv,  xvl,  20,  75,  162,  166,  309 

Marston  v.  Humes 149 

Marston  v.  Kuhland 219,  226 

Martin  v.  Election  Commrs 322,  363,  525 

Martin  v.  Wagner 204 

Martin,  In  re 66,  147,  154,  158,  176 

Martino\dch   v.    Marsicano 236 

Marysville  v.  Yuba 314,  319 

Mateer  v.  Brown 204 

Mathis   V.   State 149 

Matthews  v.  Ormerd 467,  469 

Mauch,  Ex  parte 199 

Maurer  v.  King 168 

Maurer  v.  Mitchell 223 

Maxfield  v.  Johnson 217,  218,  230,  258 

Mayrhof er  v.  Board  of  Education 541 

McAllister   v.    Hamlin xvii,  81 

McAulay  v.  Tahoe  Tee  Co 219,  226 

McBean   v.   Fresno 379,  400 

McCabe  v.  Carpenter 83,  84,  387,  388 

McCabe  v.  Jefferds xvi 

McCall  V.  California 495 

McCann  v.  Sierra  County 43 

McCapes,  In  re 5 

McCarthy,  Ex  parte vii,  14,  96,  97,  260 

McCarthy  v.  Gaston  Ridge  Mill  etc.  Co 12 

McCaughey   v.   Lyall 39 

McCauley  v.  Brooks xi,  45,  60,  79,  138,  192,  520 

McCauley  v.  Culbert 307,  370 

McCauley  v.  Fulton 199 

McCauley  v.  Weller 44,  49 

McClain,   Ex   parte 102,  381 

McCoppin   V.   McCartney 59,  466 

McCord  V.  Slavin 175,  194,  281,  284 


TABLE   OP    CASES   CITED.  xliii 

McCiilloch    V,    Maryland 7 

McCracken  v.  San  Francisco 399 

McCrary  v.  Beaiulry 511 

McDaniel   v.   Pattison 239 

McDcrmot  v.  Barton 309 

McDonald  v.  Patterson G7,   408,   £53,  554 

McDonald  v.  Taylor 378,  523 

McPadden  v.  Los  Angeles 509 

McFarland  v.  Martin 244 

McGee  v.  San  Jose 56 

McGowan  v.   McDonald xvi,  414,   415,  416 

McGrew  v.  Mayor  etc.  of  San  Jose 256,  561 

McHenry  v.  Downer 449,  455 

McKenna,   Ex  parte 377,  384 

McManus,   Ex   parte 22,   65,     80 

McNally,  Ex  parte 385 

McNee    v.    Lynch 523 

McNiel  V.  Borland 242 

McNulty,   Ex   parte 100,   102,  413 

McPhee,    Estate   of 35,  146 

McPherson    v.    Bartlett 116 

Meacham  v.  Bear  Valley  Irr.  Co 34 

Meacham   v.   McKay 259 

Meade    v.    Watson 153 

Melone,  Estate  of 148 

Melone   v.   State 192 

Melvin  v.   State 139,  278 

Menzies  v.  Board  of  Equalization 224 

Mercantile  Bank  v.  New  York 507 

Mercantile  Mat.  Bank  v.  New     York 502 

Mercantile  Nat.  Bank  of  Cleveland   v,   Hubbard 503 

Merced  Bank  v.  Rosenthal 250,  549 

Merced  Co.  v.  Flemming 377,  385 

Merced  Co.  v.  Helm 373,   389,  390 

Merced  Falls  Gas  etc.  Co.  v.  Turner 381,  407 

Merced  River  Electric  Co.  v.  Curry 427 

Mercer's    Case 123 

Merchants'  &  Mfrs'  Bank  v.  Penn 504,  507 

Merchants'  Bank  v.   ?]scondido  Irr.  Dist 41,  57,  392,  411 

Merchants'  Bank  v.  Penn 506 

Merkley  v.  Williams 305 


xliv  TABLE  OF   CASES   CITED. 

Merrill  v.  Southside  Irr.  Co 510 

Meyer  v.  Bryan 56 

Me^'er  v.  Kalkman 199 

Meyer  v.  Town   of   Boonville Ill 

Middleton    v.    Low 183 

Migliavacca  v.   Napa 359,  360 

Miles   V.   Woodward 429 

Miliken  v.  Hiiber 224 

Miller  v.  Byrd 523 

Miller  v.  Dunn vii,  176 

Miller  v.  Heilbron 455 

Miller  v.  Kern  County 156,  157,  244,  456,  465,  480 

Miller  v.  Kister 18,  164 

Miller  v.  Supervisors 224 

Miller,  Ex  parte 13 

Miller  &  Lux  v.  Kern  Co.  L.  Co 431 

Mills  V.  Sargent xvi,  471 

Milner   v.    Eeibenstein 256,  261 

Miltimore  v.  Wof ziger  Bros.  L.  Co 541 

Miner  v.  Justice's  Court 159,  198,  199,  358 

Minor  v.  Happersett 103,  113 

Minturn  v.  Havs 453,  456 

Mintzer  v.  Schilling 165,  312 

Mirande,   Ex   parte 64,  384 

Mitchell   V.    Beckman 417,  418 

Mitchell  V.  Winnek 95,  287 

Mitchell,  In  re 155,  199 

Mock,  In  re 216 

Mohle   V.    Tschirch 156 

Molineux  v.  California 173,  174 

Montague  v.  English 399 

Montague  v.  Furness 4 

Montgomery    Avenue    Case xv 

Moouey    v.    Supervisors 449,  450 

Moore  v.  Boyd 418 

Moore  v.  Ma  rtin 247 

Moore  v.  Patch 21,  159 

Moore,   Estate   of 222 

Moran  v.  Ross viii,  x,  51,  443 

More  V.  More 238 

Morgan  v.  Menzies 322 


TABLE  OF   CASES   CITED.  xlv 

Morgenson,    Ex    parte 381 

Morrow  v.  Superior  Court 416,  418,  420 

Morse  v.  De  Ardo 541 

Morton  v.   Brodcrick ix,   225,  318 

Mosely  v.   Torrence 523 

Moulton  V.  Parks 41 

Mount,  Ex  parte 383 

Moynier,  Ex   parte 5,   21,   156,  380 

Murphey  v.  Menard 149 

Murphy,  Ex  parte 158,  381 

Murphy,  In    re 37G,  377 

Murphy  v.  Bondshu 143 

Murphy  v.  Curry 20,  65 

Murphy  v.  Pacific    Bank 18,  154 

Murphy  v.  Superior   Court 244 

Murray  v.   Colgan 178,  179 

Mutual  Electric  etc.  Co.  v.  Ashworth 406 

Myers  v.  English xii,  57,  265 

Myers  v.  Kenfield 273 

Myers  v.  Sierra  Valley  etc.  Co 420 

N 

Napa  Valley  R.  R.  Co.  v.  Napa  Co 46,  173 

Napa  State  Hospital  v.  Dasso 66,  411 

Napa  State  Hospital  v.  Yuba  Co 22,  156 

National  Bank  v.  Commonwealth 506 

National  Bank  v.  Kimball 507 

National  Bank  v.  Los  Angeles 216 

National  Bank  of  Baltimore   v.   Baltimore 507 

National  Bank  of  Commerce   v.   New  Bedford 506 

National  Bank  of  Garnett    v.    Ayers 502 

National  Bank  of  Wilmington    v.   Chapman 507 

Navajo  Mining  Co.  v.  Curry 67,  426,  427 

Nelson,   Estate  of 213 

Neuman    v.    Lester 371 

Neustddt,   Ex   parte 245 

Nevada  Nat.  Bank  v.  Supervisors 388,  477 

Nevada  School  Dist.  v.  Slioecraft 153 

New  Albany  etc.  Co.  v.  Tilton 433 

New  Jersey   v.    Wilson 7 

Newark  Banking  Co.  v.  Newark 507 


Xlvi  TABLE  OP  CASES  CITED. 

NewiTiari,  Ex  parte 3,  5,       8 

Newton,  Ex  parte 460 

Niecolls   V.    Rice 421 

Nicholas,    Ex    parte 14 

Nicholl  V.  Koster 82,  317,  319,  363 

Nichols  V.  Somerset  etc.  R.  R.  Co 433 

Nickey  v.  Stearns  Ranchos  Co 46,     47 

Niles  V.  Edwards 202,  203 

Noble,   Ex  parte 375 

Noble   V.   Hook 521 

Noel  V.  Smith 215,  226 

Nones    v.    Edsall 122,  123 

Norblett  v.  Farwell 259 

Norfolk  &  Webster  R.  Co.  v.  Penn 495 

Norris  v.   Cross Ill 

Norris   v.   Hoyt 62 

North  V.  McMahan Ill 

North  Beach  etc.  R.  R.  Co.,  Appeal  of 45 

Norwood    V.    Baker 40,     52 

Nougnes  v.  Douglass xi,  387,  519 

Nugent's   Case 121 

O 

Oakland  v.  Oakland  Water  Front   Co 96 

Oakland  v.  Southern  Pac.  R.  R.  Co 475 

Oakland  v.  Thompson 157 

Oakland  etc.  Co.  v.  Rier 461 

Oakland  Pav.  Co.  v.  Barstow 408 

Oakland  Pav.  Co.  v.  Hilton vii,  122,  409,  526,  554 

Oakland  Pav.  Co.  v.  Tompkins vii,  409,  526 

O'Callaghan   v.   Booth 241 

Odd  Fellows'  Cem.  Assn.  v.  San  Francisco 381 

O'Ferrall   v.   Colby 120 

Ohio  etc.  R.  R.  Co.  v.  McClelland 433 

Ohm,    Estate    of 222,  223 

Older  V.  Superior  Court 17,  225,  553 

Olender  v.  Crystalline  M.  Co 38 

Oliverez,   In   le 556 

Olson  V.  San  Francisco 452,  456 

Omnibus   R.   R.   Co.   v.  Baldwin 19 

Opinion  of  Judges 128 


TABLE  OF  CASES   CITED.  xlvii 

Opinion  of  Justices 118,   119,  128 

Orange  Co.  v.  Harris xvi 

Orange  Co.  v.  Los  Aageles  Co 300 

Orena   V.   Sherman 471 

Osborne  v.  Florida 495 

Osborne  v.  Mobile 494 

O'Shea,  In  re 10,  11,  82 

Otis   V.   Haseltine 60 

Otto  V.  Long 37 

Owensboro  Nat.  Bank  v.  Owensboro 504 

P 

Paeitic  Bank  v.  De  Ro 412 

Pacific  Bridge  Co.  v.  Kirkham 387 

Pacific  Coast  Ey.  Co.  v.  Porter 51 

Pacific  Coast  Sav.  Soc.  v.  San  Francisco 457,  477 

Pacific  etc.  Ins.  Co.  v.  San  Diego 394 

Pacific  Nat.  Bank  of  Tacoma  v.  Pierce  Co 506 

Pacific  Paving  Co.  v.  Verso 226,  227 

Pacific  Postal  etc.  Co.  v.  Dalton 162,  459 

Pacific  By.  Co.  v.  Wade 12 

Pacific  Underwriters  v.  Widbur 400 

Packer,  Estate   of 4,  58 

Page  V.  Ellis 231 

Palache  v.  Hunt ix,  224 

Palmer   v.    McMahon 506 

Parker   v.    Otis 168,  169 

Parker  v.   State 118,  119 

Parrott,  In  re 530,  531 

Parson  v.  Tuolumne  Water  Co 212,  242 

Parsons  v.  San  Francisco 4,  48 

Partridge  v.  Butler 417 

Pasadena  v.  Stimson 19,  155,  165,  312 

Pasadena  v.  Superior  Court 234 

Pattison  v.  Yuba  Co xiv,  98,  520 

Patton  V.  Board  of  Health 545 

Patty  V.  Colgan 175 

Paty  V.  Smith 81 

Peachy  v.  Supervisors 553' 

Pearsons,  In   re 250 

Pcckham  v.  Fox 542 


xlviii  TABLE  OP  CASES  CITED. 

Pelton  V.  National  Bank ^^'^ 

Peninsular  etc.  Co.  v.  Pacific  etc.  Co 233 

Pennie  v.  Rcis 32,  147,  110,  175,  177,  391 

Pennie  v.  Koach   "^^ 

Pennsj'lvania  v.  Riblct '*"^^ 

Penu vbeclier  v.  McDougal 231 

People  V.  Abbott 1^2 

People  V.  Addison 1°' 

People  V.  Ah  Cluing   202 

People  V.  Ah  Lee  Doon 1^ 

People  V.  Ah  Sing 267 

People  V.  Alameda  Co ^^^ 

People  V.  Apgar 29,  223 

People  V.  Applegate 212,  221 

People  V.  Arnett 28 

People  V.  Ashburner 545 

People  V.  Ashbury ^^3 

People  V.  Babcock 279,   314 

People  V.  Bagley 314,  355 

People  V.  Baine 1^^ 

People  V.  Baird ^^ 

People  V.  Baldwin 268 

People  V.  Bank  of  San  Luis  Obispo 146,  553 

People  V.  Barbour 202 

People  V.  Barker 268 

People  V.  Bartlett 387 

People  V.  Berkeley 313 

People  V.  Bigler xiv,  533 

People  V.  Bingham 96,  120,  218 

People  V.  Bircham xvii 

People  V.  Bird 25 

People  V.  Black  Diamond  etc.  Min.  Co 453,  456 

People  V.  Blake 52 

People  V.  Blanding 188 

People  V.  Board   of  Aldermen 118,  119 

People  V.  Board  of  Education 79,  81,  286,  287,  554 

People  V.  Bond 56 

People  V.  Booker 9 

People  V.  Bossert 25 

People  V.  Botkin 267 

People  V.  Bowen -. 275 


Peop' 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop^ 

Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop' 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop 
Peop' 
Peop 
Peop 
Peop 
Peop 


TABLE  OP  CASES   CITED.  xlix 

e  V.  Boxer 268 

e  V.  Bray 101,  155 

e  V.  Broome 118 

e  V.  Brown 31,304 

e  V.  Budd 185,  187 

e  V.  Bunkers 27 

e  V.  Burbank 250,  544 

e  V.  Burns 131 

e  V.  Burt 125 

e  V.  Bush 26 

e  V.  Cady 42 

e  V.  Cage 25,  27,  28 

e  V.  Campbell 14,  60,  250,  370,  544 

e  V.  Carrique 123,  132 

e  V.  Carson 23 

6  V.  Casev 267 

e  V.  Caulfield 222 

e  V.  Cazeneau 185,  186 

e  V.  Central    Pae.    E.    R.    Co 19 

. .  .22,  64,  154,  155,  160,  161,  162,  163,  305,  412,  454,  455,  478 

e  V.  Chapman viii,  294 

e  V.  Chaves 13,  256 

6  V.  Chen   Lan   Ong 12 

e  V.  Chew  Sing  Wing 268 

e  V.  Christensen 266 

e  V.  City  of  Long  Beach 320 

6  V.  City  of  Los  Angeles 320 

e  V.  Clark 30,  42,  128 

6  V.  Cline 267 

e  V.  Cobb 146,  199,  256,  556,  562 

e  V.  Cohen 453 

e  V.  Cogswell 538 

e  V.  Colby 556 

e  V.  Coleman vii,  ix,  21,  33,  450,  455,  460 

e  V.  Common  Council 159,  312 

e  V.  Coronado 315,  359 

e  V.  Counts 179 

e  V.  Ciinimings ". 29 

e  V.  Curry 147,  188,  526 

e  V.  Curtis 28 

e  V.  Dashaway  Assn 245 


I  TABLE   OP   CASES    CITED. 

People  V.  Davie 360 

Peojile  V.  Davis 214,  215 

People  V.  Day 212,  242 

People  V.  Defoor 29 

People  V.  De  la  Giierra '1 

People  V.  Desj^erati 28 

People  V.  Devlin 29 

People  V.  Dick 267 

People  V.  Dobbins 144 

People  V.  Doe  G.  1,034 454 

People  V.  Dorsey 305 

People  V.  Dunn 121,  179,  453,  474 

People  V.  Durrant 18,  561 

People  V.  Eastman   466 

People  V.  Ebey 253 

People  V.  Eddy vii,  453,  456 

People  V.  Edwards ix,   186,  187,  544,  546 

People  V.  Election   Commrs 356 

People  V.  Elk  Eiver  etc.  Co 53,  101,  510 

People  V.  Eppinger 30 

People  V.  Ferguson 309 

People  V.  Finley 22 

People  V.  Pong  Chung 25 

People  V,  Fowler _.  .212,  257 

People  V.  Freeman ix,  83,  535 

People  V.  Frisbie 80 

People  V.  Fitch 186,  187 

People  V.  Gallagher 556,  563 

People  V.  Garnett 26 

People  V.  Gerke 449 

People  V.  Gillespie 261 

People  V.  Glenn  Co xiv,  125,  162 

People  V.  Goldtree 39,  40,  475 

People  V.  Gordon 29,  266 

People  V.  Greene 28 

People  V.  Gunn 355,  356,  357,  358 

People  V.  Gunst 546 

People  V.  Gutierrez 267 

People  V.  Hamberg 27 

People  V.  Hamilton 562 

People  V,  Hammond 186,  315,  546 


TABLE  OF   CASES   CITED.  U 

People  V.  Hanford  High  School 402 

People  V.  Hannon 269 

People  V.  Hardisson 29 

People  V.  Harlan 122,  125 

People  V.  Harrington 26 

People  V.  Hartnian 25 

People  V.  Harvey 225 

People  V.  Hastings 80,  459,  470 

People  V.  Hayne xii,  197,  198 

People  V.  Heacock 203,  230 

People  V.  Hecht 356,  357 

People  V.  Helbing 29 

People  V.  Henry 561 

People  V.  Henshaw 18,  21,   147,  311,  314 

People  V.  Hibernia  Bank   453 

People  V.  Higgins 28 

People  V.  Hill 118,  315,  322,  544,  545 

People  V.  Hoge 278,  322,  355,  356 

People  V.  Holden 77 

People  V.  Holladay 58 

People  V.  Home  Ins.  Co 454 

People  V.  Horn 26,  27 

People  V.  Horsley 220 

People  V.  Houston 388 

People  V.  Howard 314 

People  V.  Hunckeler 28 

People  V.  James 28 

People  V.  Jewett   vii,  545 

People  V.  Johnson 100,  217,  220,  221,  307,  369,  519 

People  V.  Jordan 272,  213,  221 

People  V.  Joselyn 245 

People  V.  Kalloch   222 

People  V.  Keefer 29 

People  V.  Kelly 14 

People  V.  Kelsey   45S 

People  V.  Kerber 516 

People  V.  Kern   Co 242 

People  V.  Kerrick 27,  29 

People  V.  Kerrigan 25 

People  V.  Kewen 289 

People  V.  King 147,  155,  269 


lii  TABLE   OF   CASES   CITED. 

People  V.  Kuehes 221 

People  V.  Lake  Co 304,  309 

People  V.  Langdon 80,  83,  187,  535 

People  V.  Lapique 22G 

People  V.  Larson 27 

People  V.  Latham 456,  458 

People  V.  Lawrence 245 

People  V.  Lee 267 

People  V.  Lee  Yune  Chong 26,  30 

People  V.  Leonard 131,  132 

People  V.  Lennox 13 

People  V.  Levee  Dist.  No.  6 310,  411 

People  V.  Lewis 15 

People  V.  Linda  Vista  Irr.  Dist 144,  147 

People  V.  Lodi  High  School  Dist 84,  155,  283 

People  V.  Logan 221 

People  V.  Los  Angeles  E.  By.  Co 424 

People  V.  Los  Angeles  etc.  Gas  Co 407 

People  V.  Love 1 

People  V.  Lynch xiii,  39,  63,  386,  388,  461 

People  V.  Mariposa  Co 80 

People  V.  Markham 116.  250 

People  V.  Martin 389,  554 

People  V.  Mateziiski 270 

People  V.  Maughs 32 

People  V.  McCauley 253 

People  V.  McCreery 449,  450,  454,  456,  458,  459,  471,  475 

People  V.  McCune 40 

People  V.  McFadden 99,  102,  1G5,  308,  310 

People  V.  McGee 269 

People  V.  McGuire 297,  299 

People  V.  McNealy 27 

People  V.  Meiggs    Wharf  Co 222 

People  V.  Mellon 253 

People  V.  Meyers 222 

People  V.  Middleton 545 

People  V.  Mier 232,  260 

People  V.  Mitchell 267 

People  V.  Mizner 185,  186 

People  V.  Mooney 30 

People  V.  Moore 235 


TABT.E   OF   CASES   CITED.  liii 

People  V.  Moran 24 

People  V.  Merino 24 

People  V.  Morse 57 

People  V.  Mortimer 60 

People  T.  Most   18 

People  V.  Mott 185,  187 

People  V.  Muhlner 29 

People  V.  Mullender 146,  164,  165 

People  V.  Mullins 322 

People  V.  Murray 268 

People  V.  Myers 297 

People  V.  Naglee 460 

People  V.  Nally 100 

People  V.  Nevada 82,  242 

People  V.  Newman 374,  553 

People  V.  Nolan   7,  33 

People  V.  Nye x,  67,  98,  185,  192,  549 

People  V.  Nylancl 198,  247 

People  V.  Ny   Sam  Chung 26,  29 

People  V.  Oakland 317,  357,  358.  359 

People  V.  Gates 148,  150 

People  V.  O'Brien ix,  32,  267,  268,  269 

People  V.  Oiler   42 

People  V.  Olvera 232 

People  V.  Ontario   98,  320,  392 

People  V.  Oppenbeimer 11 

People  V.  Oreileus    27 

People  V.  Pacheco 138,  172,  428,  519,  520 

People  V.  Palermo  L.  &  W.  Co 155,  246,  260 

People  V,  Parker 145,  187 

People  V.  Parks 99,  142,  143,  147,  188,  387 

People  V.  Parvin 142,  144 

People  V.  Paulscll 267 

People  V.  Pcndcgast xiv,  118 

People  V.  Peralta 212 

People  V.  Perini 10 

People  V.  Perry xvi,  218,  224,  269,  544,  545 

Peoj)lo  V.  Plioonix 187 

People  V.  Piner 269 

People  V.  Pingrce 222 

People  V.  Pittsburg  R.  R.  Co 474 


liV  TABLE  OF   CASES  CITED. 

People  V.  Pond 315 

People  V.  Potter 275 

People  V.  Powell 13 

People  V.  Provincs 79,  83,  198,  310 

People  V.  Eansom 549,  561 

People  V.  Raymond 455 

People  V.  Reclamation  Dist.  No.  551 41,  63,  68 

People  V.  Redinger 26 

People  V.  Reid 187,  544 

People  V.  Rice 118,  119 

People  V.  Richards 562 

People  V.  Roberts 26 

People  V.  Rogers vii,  62 

People  V.  Rosborough 186,   240,  250 

People  V.  Ross 28,  2G9 

People  V.  Ruef 215,  216 

People  V.  Russ 515 

People  V.  Sacramento  County 476 

People  V.  Sacramento  Drainage  District.  .22,  68,  146,  166,  199,  311 

People  V.  Samonset 268 

People  V.  Sanderson 83,  186 

People  V.  Sands 256,  261 

People  V.  San  Joaquin  Valley  Agr.  Assn 102,  139,  278,  411 

People  V.  Sassovich xii 

People  V.  Schmidt 30 

People  V.  Seeley 17 

People  V.  Selma  Irr.  Dist 311 

People  T.  Senter  235 

People  V.  Seymour 60,  96 

People  V.  Shear 221,545 

People  V.  Sierp 42 

People  V.  Smalling 26,  27,  28 

People  V.  Smallman 221 

People  V.  Smith 30 

People  V.  Soto 230 

People  V.  Stanford 412 

People  V.  Stephens ,  viii,  29,  405,  509,  511,  514 

People  V.  Stockton  etc.  Co 425,  458 

People  V.  Stokes 24,  246 

People  V.  Stratton 186,  545 

People  T.  Strother 409 


TABLE   OP   CASES    CITED.  Iv 

People  V.  Superior  Court 144,  145,  ICO,  163,  166,  240,  434 

P€opl«  V.  Supervisors 80,  302,  390,  475 

People  V.  Sutton 31 

People  V.  Swafford 24,  25 

People  V.  Tarbox 25 

People  T.  Tenipleton 299 

People  v.  Terrill 26 

People  V.  Thompson 118,  119 

People  V.  Tinder 9,  10 

People  V.  Tisdale 61 

People  V.  Titherington 267 

People  V.  Toal 198,  256,  261,  357 

People  v.  Todd 536 

People  V.  Travers 30 

People  V.  Tuclcer 30 

People  V.  Turner 9,  224 

People  V.  Twelfth  District  Court vii,  18,  19,  64,  79,  80,  153 

People  V.  Vereneseneckockoclihoff 267 

People  V.  Vick 221 

People  v.  Wardrip 268 

People  V.  "Waterman 250 

People  V.  Weaver 504,  505 

People  V.  Webb ix,  26 

People  V.  Weller  250 

People  V.  Wells x,  186,  202,  205 

People  V.  Whartenby 457 

People  y.  Wheeler   304,  544 

People  V.  Whitman 131,  132,  183,  186 

People  V.  Whyler xvi,  456,  459,  461,  462 

People  V.  Wickham 30 

People  V.  Williams 10,  221 

People  V.   Williamson    317 

Peo{ile  V.  Wilmington    319 

People  V.  Wong  Ah  Ngow 267 

People  V.  Wong  Bin 249 

People  V.  Wong  Wang 308 

People   V.    Woods 27,    56 

People  V.  Worswick 317 

People's  Nat.  Bank  v.  Marye 505 

Pereria   v.   Wallace 67,   317,  408 

Perkins,   Ex   p;irte 9 

Perkins  v.  Ralls 241 


Ivi  TABLE  OF   CASES   CITED. 

Perry  v.   Amos 235 

Perry  v.   Washburn 450 

Pf abler,  In  re 

98,  104,  143,  319,  356,  359,  360,  372,  392,  402 

Pfirrman,  Ex  pari e 147,  374,  390 

Phelan  v.  San  Francisco xvii,  81 

Phelps  V.   Winchomb 545 

Philadelphia  S.  S.  Co.  v.  Pennsylvania 497,  500 

Philbrook,  In  re 203 

Philbrook  v.  Newman 202 

Pierpont  v.  Crouch 142 

Pignaz  T.  Burnett 57 

Pioche  V.  Paul xvi 

Piper,  Appeal  of   52 

Pittman   v.   Carstenbrook 432 

Pittsburg  etc.  R.  R.  Co.  v.  Southwest  etc.  Ry.  Co 433 

Piatt  V.  City  &  County 356,  407 

Plumas  Co.  v.  Wheeler 384 

Polaek  V.  Gurnee 13 

Poland  V.   Carrigan 223 

Pollitz  V.  Wickersham 169 

Pollock  V.   Cummings 243,  260 

Pollok  V.  San  Diego 83 

Pond  V,  Pond 239 

Pool  V.  Superior  Court 218 

Popper  V.  Broderick 317,  318 

Porter,  Estate  of 4 

Porter  v.   Iraus 59 

Porter  v.  Thomson 148 

Porter's  Trial  128,  130 

Portland  v.  Stock 150 

Portland  R.  R.  Co.  v.  Railway  Co 443 

Postal  Telegraph  Co.  v.  Adams 495 

Potter  V.  Ames 50 

Powell  V.  Phelan 175 

Powell  V.  Wilson   123 

Powelson  v.  Lockwood 2] 3 

Power    V.    May 139,177 

Prader,   Ex   parte f)3 

Pratt  V.   Browne 148,   229,  307 

Pratt  V.  Welcome 231 

Price  V.  Whitman 127 


TABLE  OF   CASES   CITED.  Ivii 

Prigg  V.  Commonwealth 7 

Prince  V.   Fresno .    261 

Prince  v.  Lynch 419 

Pritehett   v.   Stanislaus   Co 312 

ProU    V.    Dunn ]  40 

Proulx  V.  Graves 256 

Prouty    V.    Stover 15  8 

Provident  etc.  Assn.  v.  Davis 148 

Pryor    v.    Downey 39,  80 

Purdy  V.   Sinton xvi 

Q 

Quale    V.    Moon 22 

Quan  Wo  Chung  v.  Laumeister 234 

Quarg,   Ex  parte 5,   373,  383 

Quigg    V.    Evans 358,  388 

B 

Eailroad  Co.  v.  Peniston 492 

Kamish  v.  Sausalito  etc.   Co 220,  258 

Eamish    v.    Hartwell 34 

Ramsey  v.  Haeger 428 

Randall  v.  Freed 219,  226 

Rankin   v.   Colgan 164,   173 

Rauer  v.  Williams 154,  166,  306,  312,  313,  323 

Ray  V.  Colby  &  Tenney Ill 

Ream  v.  Siskiyou  Co 45,  139,  145 

Reardon    v.    San    Fi-ancisco 47 

Eebstock  v.  Superior  Court 31,  65,  67,  76,  78 

Reclamation  Dist.    v.    Hagar 41 

Reclamation  District   No.    70   v.    Sherman 214,   311,  411 

Reclamation  Dist.  No.  108  v.  Evans 41 

Reclamation  Dist.  No.  124  v.  Gray 411 

Reclamation  Dist.  No.  551  v.  Sacramento 454 

Rcdlands   v.    Brook 40,  163 

Redlands  etc.  Co.   v.   Redlands 406 

Reed    v.    Borna  1 232 

Roed  V.  Collins 384 

Reed  v.  McCormick    239 

Reed  v.  Omnibus  R.  R.  Co xiv,  xvi,  260 

Reed  v.  Schon   132 


Iviii  TABLE  OP   CASES   CITED. 

Eeene  v.  Co!iisa  Gas  etc.  Ca 204 

Rcgina  V.  Neale   18 

Rcid  V.  Clay    40 

Reid  V.  Groezinger 306 

Reilly,  Ex  parte 256,  261 

Reis,  Ex  pa  rte 562 

Reis  V.  State   519 

Rex  V.  Birt    18 

Rice  V.  National  City 370 

Richard's  Casf- 120 

Ricliards  v.  Wetmore 239 

Rickey  Land  etc.  Co.  v.  Glader   213,  219,  226 

Ricks  V.  Reed 242 

Rider  v.  Regan 34,     37 

Risdon  v.  Prewett 220,  226 

Ritchie  t.  Dorland 235 

Riverside  Co.  v.  Butcher 529 

Riverside  Co.  v.  San  Bernardino  Co 299 

Roach,  Ex  parte   374 

Robert  v.  Police  Court xvii,  246,  320,  364 

Robertson  v.  Library  Trustees   399 

Robinson  v.  Dunn    173,  177 

Robinson  v.  Eberhart    523 

Robinson     v.  Kerrigan 38,  82,  143,  166 

Robinson  v.  Magee    55,     57 

Robinson  v.  Southern  Pac.  R.  R.  Co 443 

Robinson,  In  re 13 

Rode  V.  Siebe 154,  162,  459 

Rodley  v.  Curry    230 

Roebling's  Sons  Co.  v.  Butler 419 

Rogers,  In  re    31 

Rollins  V.  Wright   58,  153,  536 

Romaine,  Ex  parte 7 

Rood  V.  McCargar   xvi 

Rosaseo  v.  Tuolumne   476 

Rose  V.  Estudillo    57 

Rosenberg  v.  Frank    233,  235 

Rosenblatt  v.  Johnston    504 

Ross  V.  Whitman   96 

Rothschild  V.  Bantel 395 

Rowe,  Ex  parte    31 

Royer,  Estate  of 289 


TABLE  OP   CASES   CITED.  Hx 

Eudel  V.  Los  Angeles   48 

Kuef ,  Ex  parte    10,  14,  15 

Ruperich  v.  Baehr 18,  22,  154,  156 

Kussell,  In  re    215 

Rutledge  V.  Crawford    73 

Ryan  v.  Johnson 12,  21 

Ryan  v.  Oakland  Gas  etc.  Co 269 

Ryder  v.  Cohn 197,  235 

Ryder,  Estate  of 236 

S 

Sacramento  v.  Crocker. 389,  460 

Sacramento  v.  Dillman 389 

Sacramento  Bank  v.  Pacific  Bank 419 

Sacramento  P.   Co.  v.  Anderson 409 

Sah  Qiiah,  In  re 62 

Sam  Chung,  In  re 382 

San   Benito  Co.  v.  Southern  Pac.  R.  R.  Co 455 

San  Bernardino  v.  Southern  Pac.  Co 453,  478 

San  Bernardino  etc.  Ry.  Co.  v.  Haven 51 

Sanborn  v.   Belden 49 

Sanborn  v.  Superior  Court 259 

Sanders  v.   Sehorn 308 

Sanchez  v.  Fordyce 307 

San  Diego  v.  Dauer 281 

San  Diego  v.  Higgins 463 

San  Diego  v.  Linda  Vista   Irr.  Dist 461 

San  Diego  v.  Riverside  County 301,  478 

San  Diego  v.  Schwartz 306 

San  Diego  Water  Co.  v.  San  Diego 50,  512 

Sanford  v.  Head 233 

Sanf ord   v.   Maxwell 524 

San  Francisco  v.  Anderson 451,  457 

San  Francisco  v.  Bank 504 

San  Francisco  v.  Beideman 56 

San  Francisco  v.  Broderick 164,  306,  392 

San  Francisco  v.  Canavan 311 

San  Francisco  v.  Central  Pac.  R.  R.  Co 477 

San  Francisco  v.  Collins 50 

San   Francisco  v.  Dunn 138 

San  Francisco  v.  Flood 451 


Ix  TABLE   OP   CASES   CITED. 

San  Francisco  v.  Fry 451,  457 

8an  Francisco  v.  Insurance  Co 374,  386,  388 

San  Francisco  v.  Kiernan 44,  145,  160,  408 

San  Francisco  v.  La  Societe,  etc 453 

San  Franc'sco  v.  Lux    477 

San  Francisco  v.  Spring  Valley  W.  W 

xvi,  20,  64,  142,  143,  154,  411,  412,  413,  453,  457 

San  Francisco  v.  Talbot '. 452 

San  Francisco  v.  Western  Union  Tel.  Co 455 

San  Francisco  &  S.  J.  V.  Ry.  Co.  v.  Stockton 478,  479 

San  Francisco  etc.  Agency  v.  Miller 420 

San  Francisco  etc.  Co.  v.  Bates 40,  52,  462 

San  Francisco  etc.  Factory  v.   Brickwedel 513 

San  Francisco  etc.  E.  R.  Co.  v.  Caldwell 44,   46,     51 

San  Francisco  etc.  E.  E.  Co.  v.  State  Board 

144,  162,  457,  475,  476,  477 

San  Francisco  etc.  R.  R.  Co.  v.  Taylor 50 

San  Francisco  etc.  Ry.  Co.  v.   Scott 478 

San  Francisco  Gas  Co.  v.  Brickwedel 399 

San  Francisco  Gas  Co.  v.  Dunn 405,  406 

San  Francisco  L.  Co.  v.  Bibb 4 

San  Francisco  Nat.  Bank  v.  Dodge 507 

San  Francisco  P.  Co.  v.  Bates 40,  408 

San  Francisco  Sav.  Union  v.  Abbott 556 

San  Gabriel  Co.  v.  "Witmer  Co viii,  467 

San  Joaquin  etc.  Co.  v.  Merced  County 452,  477,  514 

San  Jose  v.  San  Jose  etc.  R.  R.  Co 460 

San  Jose  R.  Co.  v.  San  Jose  etc.  Co 213 

San  Jose  Ranch  Co.  v.  San  Jose  etc.  Co 32,  34,  170 

San  Jose  Sav.  Bank  v.  Pharis 419 

San  Luis  Obispo  v.  Darke. x,  307 

San  Luis  Obispo  v.  Farnum 394 

San  Luis  Obispo  v.  Graves 19,  161,  302,  305,  374,  375 

San  Luis  Obispo  v.  Greenberg 384 

San  Luis  Obispo  v.  Simas 230 

San  Luis  Obispo  County  v.  Felts 283,  479 

San  Luis  Water  Co.  v.  Estrada 413 

San  Mateo  v.   Coburn 51 

San  Mateo  W.  W.  v.  Sharpstein 49 

Santa  Ana  v.  Brunner 51 

Santa  Ana  v.  Gildmacher 268 


TABLE   OP   CASES    CITED.  Ixi 

Santa  Barbara  v.  Eldred 206,  243 

Santa  Barbara  v.  Sherman 270 

Santa  Barbara  v.  Stearns 241,  459 

Santa  Cruz  v.  Enright 156,  315 

Santa  Cruz  etc.   Co.  v.  Santa  Clara 224 

Santa  Cruz  Eock  etc.  Co.  v.  Lyons 39 

Santa  Eosa  v.  Bower 357 

Santa  Eosa  v.  Coulter 34 

Santa  Eosa  City  E.  E.  Co.  v.  Eailway  Co 202 

Santa  Eosa  Nat.  Bank  v.  Barnett 413,  416,  417 

Sauer,   Ex  parte 226 

Saunders    v.    Havnes 242 

Savings  etc.  Soe'  v.  Austin 100,  305,  453,  457,  467,  473,  474 

Savings  etc.  Soc.  v.  San  Francisco 467 

Scliaezlein   v.   Cabaniss 99 

Schamblin  v.  Means 689 

Schostag  V.  Cator 76,  77,  158 

Schroeder  v.   Grady 474 

Schumaker   v.   Toberman 40,  388 

Schwartz  v.  Wilson 399 

Scollay   V.   Butte   Co 99 

Seale  v.  Ford 556 

Seale  v.  Mitchell 199,  212 

Searcy  v.  Grow 132 

Seattle  Coal  etc.  Co.  v.  Thomas 240 

Second  Nat.  Bank  of  Titusville  v.  Caldwell 504 

Security  Sav.  Bank   v.   San   Francisco 453 

Security  Sav.  etc.  Co.  v.  Hinton 315,  356,  387 

Selma    v.    Brewer 381 

Seube,   Ex   parte 390 

Sharon  v.  Sharon ix,  223 

Sharp   V.   Blankenship 32 

Sharpe  v.  Contra  Costa  Co 57,  297 

Shaughnessv  v.  Am.  Surety  Co 159,  542 

Shaw    v.    Statler 400 

Shealor  v.   Superior  Court 258 

Sheehan  v.  Scott 95,  355,  304,  534 

Shercr  v.  Superior  Court 246,  247 

Sherman  v.  Buick 46,     47 

Slieward  v.  Citizens'  Water  Co 511,  512 

Shrader,  Ex  parte .5,  53,  79,  80,  374,  381 


Ixii  TABLE  OF   CASES  CITED. 

Sic,  In  re 375 

Siddall    V.  Harrison 235 

Siemessen  v.  Bofer 62 

Sierra  L.  Co.  v.  Wolff 221 

Sievers  v.  San  Francisco 48 

Simmons   v.    Brainard 218 

Simons  v.  Bedell 233,  238 

Sing   Lee,    Ex    parte 373,  383 

Sinton    v.    Ashbury 318,  386 

Sixth  District  Agr.  Assn.  v.  Wright 175 

Skillman    v.   Lackman 217 

Skinner  v.  Buck 34 

Slocum  V.  Bear  Vallev  Irr.  Co 158 

Smails  v.   White ." 150 

Small  V.  Gwinn 257 

Smilie  v.  Fresno 400 

Smith,  Ex  parte 53,     54 

Smith,  In  re 377,  378,  407 

Smith,  Matter  of 230 

Smith  V.  Andrews 236 

Smith  V.  Broderick 399 

Smith  V.  Brown 545 

Smith  V.  Dunn 164,  177 

Smith  V.  Farrelly 461 

Smith  V.  Kenfield 164,  271 

Smith  V.  McDermott 153,  154,  160,  552 

Smith  V.  Morse 55,  56,     59 

Smith  V.  Oakland 224 

Smith  V.  Omnibus  R.  R.  Co 260 

Smith  V.  Roberts 524 

Smith  V.  St.  Lawrence  Co 119 

Smith  V.  Strother    79,     81 

Smith  V.  Westerfield 236 

Smith  &  Keating,  Ex  parte 5,  18,  22,  381 

Smith's    Case    121 

Socialist  Party  v.  Uhl 68,  76,  77,  143,  535 

Sohler   v.   Sohler 206 

Sohncke,  Ex  parte 20,  65,  159 

Solano  Co.  v.  McCudden 18 

Solomon,  Ex  parte 376 


TABLE  OF   CASES   CITED.  Ixiii 

Solomon  r.  Reese 217,  231 

Somers  v.   State 544,  545 

Sonoma  Valley  Bank  v.  Hill 418 

Sonora  v.  Cm  tin 384 

Soto,    Ex    parte 261 

Southern  Cal.  L.  Co.  v.  Peters xii,  542 

Southern  Cal.  M.  T.  Co.  v.  Lincoln  University 237 

Southern  Cal.  Ry.  Co.  v.  Superior  Court 221 

Southern  Pacific   Co.   v.   Pomona 146 

Southern  Pac.  R.  R.  Co.  v.  Pixley 243 

Southern  Pac.  R.  R.  Co.  v.  Reed 45 

South  Pasadena  v.  Pasadena  LaYid  Co 407,  426 

South  Pasadena  v.  Terminal  Ry.  Co 377,  382 

Southwestern  Tel.  &  Tel.  Co.  v,  Dallas Ill,  112 

Southwick  V.  Davis 522 

Sparks,  Ex  parte 198,  358,  363 

Spaulding  v.  Mead 120 

Spear    v.    Reeves 184,  520 

Speegle   v.   Joy 554 

Spencer,  In  re xii,  xvi,  22,  157,  382 

Spier  V.  Baker 75,  144,   158,  539 

Spencer  Creek  Water  Co.  v.  Vallejo 198,  241,  242 

Spinney  v.  Griffith 541 

Sponogle  V.  Curnow 545 

Spreckels  v.  Hawaiian  Com.  etc.  Co 233 

Spring  Valley  W.  W.  v.  Barber 451 

Spring  Valley  W.  W.  v.  Bartlett 513 

Spring  Valley  W.  W.  v.  Bryant 412 

Spring  Valley   W.  W.  v.  Drinkhouse 48 

Spring  Valley  W.  W.  v.  San  Francisco 

54,  99,  234,  405,  413,  509,  512,  513,  554 

Spring  Valley  W.  W.  v.  SchoUisr 405,  452,  459,  514 

Stafford   v.   Lick 60 

Stanford,   Estate   of 139,   163,  174 

Stanford  v.  San  Francisco 48 

Stanislaus  Water  Co.   v.  Bachman 509,  510 

Stanley  v.  Supervisors  of  Albany 507 

State  V.  Boyd    121 

State  V.  Brandt    545 

State  T.  Brassfield    148 


Ixiv  TABLE   OF   CASES   CITED. 

State  V.  ChurcTi    407 

State  V.  Collier   539 

State  V.  Cunuingham    118,  119 

State  V.  Doion    viii 

State  V.  Dudley    118 

State  V.  Dustin   539 

State  V.  Langworthy Ill 

State  V.  McCauley   10,  519,  520 

State  V.  Pacific  Tel.  &  Tel.  Co Ill,  113 

State  V.  Portland  Ey.  L.  &  P.  Co Ill 

State  V.  Purdy 539 

State  V,  Eoach Ill 

State  V.  Eussoll Ill 

State  V.  Schliier    110 

State  V.  Sloan    179 

State  V.  Smith    62,  280 

State  V.  Steamship  Constitution 529,  531 

State  Census,   In   re 118 

State  Freight   Tax   Cases 495 

State  Eailroad   Tax   Cases 493 

Staude  v.  Election  Commrs ix,  79,  81,  315 

Steamship  Co.  v.  Pennsylvania 496 

Stein  V.  Howard 426 

Steinhart  v.  Superior  Court 49 

Stephen,  Ex  parte   375,  385 

Stevens,  In  re 198 

Stevens  v.  Truman 81 

Stevenson  v.  Colgan xi,  xii,  173 

Stewart  v.  Kvser 77 

Stewart  v.  Torrance 223,  225 

Stillwell   V.    Cutler 169 

Stilphen  v.  Ware 419 

Stimson  M.  Co.  v.  Braun 3,  541 

Stimson  Mill  Co.  v.  Nolan 5,  35,  542 

Stockton  V.  Insurance  Co 316,  471 

Stockton  etc.   Co.  v.   Galgiana 50,  220 

Stockton  etc.  E.  E.  Co.  v.  Stockton xii,  xiv,  46,  428,  459 

Stockton  Gas  etc.  Co.  v.  San  Joaquin 405,  477 

Stockton  L.  Co.  v.  Schuler 219,  226 

Stockton  School  Dist.  v.  Wright 283 


TABLE   OF   CASES   CITED.  IxV 

Stone  V.  Elkins 80 

Stoppelkamp  v.  Mangeot 259 

Storke  v.   Goux 370 

Stratman,  Ex  parte 198 

Stuart,  In   re 385,   549,  552 

Sullivan  v.  Gage   179 

Sullivan  v.  Market  St.  Ey.  Co 268 

Summerfield  v.  Dow 308 

Summerland  v.  Bieknell 21,  307,  309 

Supervisors  v.  Stanley 505 

Sutherland  v.  Sweem 260 

Sutro,  Estate   of 538 

Suydam  v.  Moore   433 

Swamp  Land  Dist.  No.  150  v.  Silver 311 

Sweet  V.  Tice 217 

Sweetnian,  Ex  parte 316,  317,  376 

T 

Talbott  V.  Silver  Bow  County 502,  506 

Tay  v.  Ilawley 37 

Taylor  v.  Beckham 113 

Taylor  v.  Hill    36 

Taylor  v.  Mott   174,  177 

Taylor  v.  Palmer 40,  45,  52,  388,  408,  450,  460,  462 

Taylor  v.  Reynolds 13 

Taylor  v.  Taintor 7 

Taylor,  Ex  parte 316,  375 

Tehama   Co.   v.   Bryan 50 

Telegraph  Co.  v.  Texas 495 

Teralta  Land  etc.  Co.  v.  Shaffer 58 

Terrett  v.  Taylor 7 

The  Boca  Mill  Co.  v.  Curry 411,  424 

Thistleton,  Ex  parte 214 

Thorn  V.  Los  Angeles 309 

Thomas  v.   Anderson 232 

Thomas  v.  Justice's  Court 241,  260 

Thomas,  Ex  parte 149 

Thomason  v.  Ashworth 315,  409,  526 

Thomason  v.  Kuggles ix,  315,  409,  526,  554 

Thompson  v.  Pacific  Railroad 492 


Ixvi  TABLE  OF   CASES   CITED. 

Thompson  v.  Williams 212,  247 

Thorn  v.  San  Francisco 55,  58 

Thornton  v.  Hooper 55,  56 

Thresher  v,  Atchison 58 

Thurston   v.    Clark 30 

Tingley  v.  Times-Mirror 430,  431 

Title  etc.  K^storation  Co.  v.  Kerrigan xii,  38,  146,  157,  158,  198 

Toland  V.  Eari 235,  238 

Toland,  Ex  parte 556 

Tolman  v.  Smith 245 

Tomlinson,  Matter  of   239 

Tomsky  v.  Superior  Court 37,  237 

Tonawanda  v.  Lyon 40,  52 

Tout  V.  Blair 305 

Town  etc.  v.  Frieze 150 

Townsend  v.  Brooks 247 

Tracy  v.  Muir 38 

Traf ton  v.  Quinn 360 

Trahern  v.  San  Joaquin  Co 49 

Treadwell  v.  Yolo  Co 371 

Tregea  v.  Owens 461,  466 

Trezevant  v.  Strong  Co 431 

Tribune  Co.  v.  Barnes 149 

Trinity  County  v.  Mendocino  County 81,  302 

Trippet  V.  State 38,  176 

Trumbull's  Case 120,  195 

Trumpler  v.  Trumpler •   204 

Tucker  v.  Aiken 539 

Tucker  v.  Barnum 306,  307 

Tulare  v.  Hevren 160,  229,  230 

Tulare  Co.  v.  Jefferds 370 

Tulare  Co.  v.  Kings  Co 300 

Tulare  Co.  v.  May 21,  161,  163,  164,  165,  166,  302,  309,  392 

Tuolumne  Redemption  Co.  v.  Sedgwick 58 

Turlock  Irr.  Dist.  v.  "Williams 45,  450 

Turner,  In  re 62 

Turner  v.  Fidelity  Loan  Concern 427 

Turner  v.  Siskiyou  Co 20,  161,  306 

Turney  v.  Marshall 120,  195 

Tuskaloosa  B.  Co.  v.  Olmsted 150 


TABLE   OF   CASES   CITED.  Ixvii 

Tuttle  y.  Block 58 

Tuttle,  Ex  parte 373,  379 

Tyler  v.  Houghton 9,  224 

Tyler  v.  Tehama  Co 48 

U 

Underliill  v.  Santa  Barbara  etc.  Imp.  Co 426 

Union  etc.  Co.  v.  Superior  Court 234 

Union  Ice  Co.  v.  Rose 159,  312 

United  States  v.  Ballin 120 

United  States  v.  Cooper  122 

United  States  v.  Greathouse 63 

United  States  v.  Hanway 63 

United  States  v.  Hartwell 545 

United  States  v.  Eliodes  7 

University  of  California  v.  Bernard xiii,  149,  150 

Upham  V.  Super\'isors 97,  297 

Uridias  v.  Morrill 83,  199 

Urton  V.  Wilson 523 

Urton  V.  Woolsey 244 

V 

Vail  V.  San  Diego  Co 18,  154,  165,  307 

Valle  V.  Shaf er 381 

Vance  Redwood  L.  Co.  v.  Durphy 470 

Vanderhurst  v.  Tholeke 379 

Van  Allen  v.  Commissioners 502 

Van  Alstine  v.  Frear Ill 

Van  Harlingen  v.  Doyle 20,  65 

Van  Hoffman  v.  Quincy 7 

Van  Valkenburg  v.  Brown   72 

Varney  &  Green  v.  Williams 53,  383 

Vassault  v.  Austin 199 

Vaughn  v.  English 1 85,  545 

Ventura  Co.  v.  Clay 232,  390 

Vernon  v.  Supervisors   318 

Vernon  Scliool  Dist.  v.  Board  of  Education 147,  155,  313,  314 

Vilhac  V.  Stockton  etc.  R.  R.  Co 49 


Ixviii  TABLE   OP    CASES   CITED. 

Voll,  Ex  parte 10 

Votan  V.  EeesP 217 

Vulieevich  v.  Skinner 26S 

W 

Wagner,  Ex  parte Ill 

Walchter  v.  Atchison  etc.  Ry.  Co 432 

Waldron  v.  Railroad  Co 433 

Walkerly,  Estate  of 222 

Wall,  Ex  parte 97,  98,  302 

Wallingf ord,  Ex  parte 245 

Walser  v.  Austin 21,  52,  162,  302,  309 

Walsh  V.  Mathews 460,  461,  462 

Walther  v.  Rabolt 7,  62 

Ward  V.  Flood 281,  282 

Ware  v,  Robinson 36 

Warner  v.  Hall   214 

Warner  v.  Kelly 214 

Warren  v.  San  Francisco 454 

Washington  v.  Black 239 

Washington  v.  Page x,  142 

Waterloo  etc.  Road  Co.  v.  Cole 412 

Watt  V.  Wright 230 

Weaver  v.  Reddy , 317 

Weaver  v.  San  Francisco 399,  402 

Webb  V.  Hanson   226 

Weber  v.  Santa  Clara  Co 49 

Weber,  In   re 157 

Webster  v.  Bell 495 

Weiderkind  v.  Tuolumne  Co.  Water  Co 268 

Weill  V.  Kenfield vii,  124,  547 

Welch  V.  Cross 54,  59 

Welch  V.  Strother 400 

Weldon  v.  Rogers 35 

Weldon  v.  Superior  Court 223 

Wells  V.  Black 416,  417 

Wells  V.  Torrance  246 

Wells,  Ex  parte 275 

Wells,  Fargo  &  Co.  v.  Board  of  Equalization 475 

Wells,  Fargo  &  Co.  v.  Enright 419 

Welsh  V.  Bramlet.  .  .21,  162,  164,  301,  302,  304,  306,  308,  309,  370 


TABLE    OF    CASES    CITED.  Ixix 

Werner,  In  re 147,  374 

West  Phil.  Pass  E.  R.  Co.  v.  Union  Pass  E.  Co 124 

Westerfield,  Ex  parte 159 

Western  etc.  Co.  v.  Knickerbocker 101,  156 

Western  Meat  Co.  v.  Superior  Court 15 

Western  Union  Tel.  Co.  v.  Taggert    493,  501 

Western  Union  Tel.  Co.  v.  Visalia 455 

Wheeler  v.  Donnell 225 

Wheeler  v.  Herbert C6,  73,  166,  301,  392 

Whitbeck  v.  Mercantile  Bank 505 

White.  Ex  parte 380 

White  V.  Light'hall 214 

Whitehurst  v.  Stuart 419 

Whiteman  v.  Wilmington  etc.  E.  E.  Co 188 

Whiting  V.  Haggard   553 

Whiting  V.  Quackenbush 40,  52,  408,  462 

Whiting  V.  Townsend 40,  52,  81,  408,  462 

Whitley,  Ex  parte 64,  82,  157 

Whitney,  Matter  of 118,  119 

Whitwell,  Ex  parte 382 

Wickersham  v.  Brittan 242,  552,  562 

Wigmore  v.  Buell 18,  21,  153 

Wilcox  V.  Oakland 245 

Wilson  V.  Eoach 237 

Will  V.  Sinkwitz 247 

Willard  v.  Superior  Court 25,  42 

Williams  v.  Board  of  Trustees 320 

Williams  v.  Corcoran    458,  461 

Williams   v.   Williams    234 

Williams,  Ex  parte 160,  161,  556 

Willis   V.   Farley 223 

Willow  Land   Co.   v,   Goldschmidt 219 

Wills  V.  Austin xvi,  40,  474 

Wilmerding,   In   re 451 

Wilson  V.   Roach    212 

Wilson  V.  Supervisors   456 

Winchester,  Estate  of 148 

Winchester  v.  Howard   420,  421 

Winchester  v.   Mabury    420 

Winona  etc.  E.  R.  Co.  v.  Waldron 433 

Winona  Wagon  Co.  v.  Bull 417 


IXX  TABLE   OF   CASES    CITED. 

Winrod  v.  Wolters   231 

Winslow,   Estate    of . ." 222 

Winter  v.  Fitzpatrick    224 

Wisconsin  &  Michigan  Ry.  Co.  v.  Powers 501 

Wittman  v.  Police  Court 13,  14 

Wittmeier,  Estate  of 222 

Wolters,  Ex  parte 385 

Wong  Hane,   Ex    parte   376 

Wong  You  Ting,  Ex  parte 12,13 

Wood  V.  Election  Commrs 141,  322 

Woodruff  V.  Baldwin 14S 

Woods  V.  Potter 370,  371 

Woods  V.  Varnum 11,  130 

Woodward  v.  Fruitvale  Sanitary  Dist xiii,  102,  388,  391 

Wooley  V.   Butler 122 

Wratten  v.  Wilson   258 

Wright  V  Central  etc.  Water  Co 428 

Wright  V.  Del  Norte  Co 233 

Wright  V.  Laugenour 545 

Wright  V.  Sonoma   219,  226 

Wright  V.  Superior  Court  230 

Wulzen  V.  Supervisors   32,  36,  79 

Wyatt  V.  Arnott   273 

Wyckoff  V.  Southern  Pac.  Co 268 

Wysinger  v.  Crookshank 281 

Y 

Yale,  Ex  parte 534 

Yarnell  v.  Los  Angeles 390,  394 

Yick  Wo,  In  re 380 

Yolo  Co.  V.  Colgan 122,  125 

Yolo  Co.  V.  Dunn    138 

Yolo  Co.  V.  Sacramento 235 

Yorke  Co.  v.  Dalhousie 275 

Yosemite  Stage  etc.  Co.  v.  Dunn 173,  174 

Youd  V.  German  Sav.  &  Loan  Soc 425 

Youle  V.  Thomas   524 

Young,  Ex  parte 33,  53,  382 

Young  V.  Eosenbaum   419 

Young  V.  Wright 260 


TABLE   OF    CASES    CITED.  Ixxi 

Tturburru,  Estate  of   156 

Yule  V.  Bishop 418 

Z 

Zabriskie  v.  Torrey 217 

Zander  v.  Coe 212,  257 

Zhizhuzza,  In  re 18,  19,  100,  381 


CONTENTS 

OF 

CONSTITUTION  OF  1879. 


ARTICLE  I. 

DECLAEATION  OF  EIGHTS. 

§     1.  Inalienable  rights. 

§     2.  Political  power. 

§     3.  Relation  to  the  American  Union. 

§     4.  Religious  freedom. 

§     5.  Habeas  corpus. 

§     6.  Right  to  bail — Rights  of  witnessea. 

§     7.  Trial  by  jury. 

§     8.  Offenses,  how  prosecuted. 

§     9.  Liberty  of  speech  and  freedom  of  the  press — Trials  for 

libel. 

§  10.  Popular  assemblies. 

§  11.  Uniformity  of  laws. 

§  12.  Military  power. 

§  13.  Personal  and  property  rights. 

§  14.  Eminent  domain. 

§  15.  Imprisonment  in  civil  cases. 

§  16.  Laws  prohibited — Bills  of  attainder,  ex  post  facto,  etc. 

§  17.  Rights  of  foreign  residents. 

§   18.  Slavery  prohibited. 

§  19.  Searches  and   seizures,   restriction  on. 

§  20.  Treason  defined. 

§  21.  Privileges  and  immunities  of  citizens. 

(Ixxiii) 


Ixxiv  CONSTITUTION   OF    1879. 

§  22.  Provisions  of  constitution  construed. 

§  23.  Rights  retained  by  the  people. 

§  24.  Property  qualification  not  required. 

§  25.  Right  to  fish  upon  public  lands. 

ARTICLE  II. 

RIGHT  OF  SUFFRAGE. 

§  1.  Who  are  and  who  are  not  electors. 

§  2.  Privileges  of  electors. 

§  2i.  Primary  elections. 

§  3.  Militia  duty,  privilege  of  electora. 

§  4.  Residence  of  voters,  gained  or  lost. 

§  5.  Election  by  ballot. 

§  6.  Voting  machineB. 

ARTICLE  III. 

DISTRIBUTION  OF  POWERS. 

ARTICLE  IV. 

LEGISLATIVE  DEPARTMENT. 

§  1.  Senate  and  assembly,  and  enacting  clause — Initiative  and 

referendum. 

§  2.  Sessions  of  legislature. 

§  3.  Election  and  term  of  assemblymen. 

§  4.  Election  and  term  of  senators. 

§  5.  Number  and  classes  of  senators. 

§  6.  Senatorial  and  legislative  districts. 

§  7.  Organization  of  legislature. 

§  8.  What  number  constitutes  a  quorum. 

§  9.  Rules  for  their  government — Expulsions. 


CONSTITUTION    OF    1879.  IxXV 

§  10.     Each  house  to  keep  a  journal. 

§  11.     Privilege  of  members. 

§  12.     "Vacancies,  how  filled. 

§  13.     Open  doors  and  secret  sessions. 

§  14.     Adjournment,  how  long  and  where  to. 

§  15,     Origin  and  passage  of  bills. 

§  16.     Approval  and  return  of  bills — Passage  over  veto. 

§  17.     Impeachments,  presentment  and  trial  of. 

§  18.     What  officers  liable  to  impeachment — Judgment  on. 

§  19.     Member  ineligible  to  office  created  during  the  term. 

§  20.     Who  ineligible  to  office  under  state  government — Proviso. 

§  21.     Embezzlement  or  defalcation — Penalty  for. 

§  22.  Public  moneys  and  accounts — Statement  of  receipts  and 
expenditures  —  Panama-Pacific  International  Exposi- 
tion. 

§  23.     Compensation  not  to  be  increased  during  term. 

§  23a.  Officers,  employees  and  attaches. 

§  24.     Title  of  laws — Eevision  and  amendment — Publication  of. 

§  25.     Local  and  special  laws  prohibited. 

§  25J.  Fish  and  game  districts. 

§  26.  Lotteries  prohibited — Purchase  and  sale  of  shares  of 
stock  to  be  regulated. 

§  27.     Congressional  and  senatorial  districts. 

§  28.     Elections  by  legislature  to  be  viva  voce. 

§  29.     General  appropriation  bill,  what  to  contain. 

§  30.     Eestriction  on  appropriations  and  grants  of  aid. 

§  31.     Credit  of  state  or  municipalities  not  to  be  loaned. 

§  32.     Extra  compensation  to  officers  forbidden. 

§  33.  Charges  of  gas  and  telegraph  corporations  to  be  regu- 
lated. 

§  34.     Special  appropriation  bill,  restriction  as  to. 

§  35.     Lobbying  defined — Punishment  for. 

§  36.     State  highways. 


Ixxvi  CONSTITUTION   OP   1879. 

ARTICLE  V. 

EXECUTIVE  DEPAETMENT. 

§     1.  Executive  power  vested  in  governor. 

§     2.  Election  of  governor  and  term  of  office. 

§     3.  Eligibility  and  qualifications. 

§     4.  Keturns  of  election — Counting  votes. 

§     5.  Governor  to  be  commander-in-chief  of  militia. 

§     6.  Executive  business  of. 

§     7.  To  see  that  laws  are  executed. 

§     8.  To  fill  vacancies  in  office. 

§     9.  When  to  convene  special  sessions. 

§  10.  Messages  to  legislature. 

§  11.  When  to   adjourn  legislature. 

§  12.  Disability  to  hold  other  offices. 

§  13.  Keeper  of  seal  of  state. 

§  14.  To  sign  and  seal  grants  and  commissions. 

§  15.  Lieutenant-governor — Election  of,  etc. 

§  16.  When  powers  of  governor  devolve  on. 

§  17.  State  officers — Election  and  terms  of  office. 

§  18.  Secretary  of  state — Duties  of. 

§   19.  Compensation  of  state  officers. 

§  20.  Governor — Ineligible  to  United  States  senate. 

'ARTICLE  VI. 

JUDICIAL    DEPARTMENT. 

§  1.     Judicial  powers. 

§  2.     Supreme  court,  how  constituted. 

§  3.     Election  of  supreme  justices. 

§  4.     Jurisdiction  of  supreme  court  and  courts  of  appeaL 

§  4i.  Harmless  errors  to  be  disregarded. 

§  5.     Superior  court,  jurisdiction. 


CONSTITUTION  OP  1879.  Ixxvii 

§     G.  Superior  court,  how  constituted. 

§     7.  Superior  judges,  apportionment  of  business. 

§     8.  Judge  may  hold  court  in  other  county — Judge  pro  tem- 
pore. 

§     9.  Leave  of  absence — Limitation  of  time. 

§   10.  Justices  and  judges,  how  removed. 

§  11.  Justices  of  the  peace,  provision  for. 

§   12.  Courts  of  record. 

§  13.  Jurisdiction  of  inferior  courts  to  be  fixed  by  legislature. 

§  14.  Clerks  of  courts  and  court  commissioners. 

§  15.  Judicial  officers  not  to  receive  fees  and  perquisites. 

§  16.  Supreme  court  opinions  to  be  published. 

§   17.  Compensation  of  justices  and  judges. 

§  18.  Justices  and  judges  ineligible  to  other  offices. 

§  19.  Charges  to  juries. 

§  20.  Style  of  process. 

§  21.  Eeporter  of  supreme  court  decisions. 

§  22.  Judges  not  to  practice  law. 

§  23.  Eligibility  of  justices  and  judges. 

§  24.  Condition  precedent  to  draft  of  salary, 

§  25.  Supreme  court  commission. 

ARTICLE  VII. 
PARDONING  POWER. 

ARTICLE  VIIL 

MILITIA. 

§  1.     Organization  and  calling  forth  of. 
§  2.     Device,  banner,  or  flag  to  be  used. 


Ixxviii  CONSTITUTION  OP  1879. 

ARTICLE  IX. 

EDUCATION. 

§     1.  Promotion  of  intellectual  improvement. 

§     2,  Superintendent  of  public  instruction, 

§     3.  County  superintendents  of  schools. 

§     4.  School  funds,  source  and  origin,  and  how  appropriated. 

§     5.  System  of  common  schools  to  be  provided. 

§     6.  School  system,  what  to  include. 

§     7.  Text-books,  who  to  adopt — Local  boards  of  education. 

§     8.  Sectarianism  prohibited. 

§     9.  University  fund,  creation,  management,  and  application 

of. 

§  10.  Leland  Stanford  Junior  University. 

§  11.  The  California  School  of  Mechanical  Arts. 

§  12.  The  California  Academy  of  Sciences. 

§  13.  Cogswell  Polytechnical  College. 

ARTICLE  X. 

STATE  INSTITUTIONS  AND  PUBLIC  BUILDINGS. 

§  1.  State  prison  directors,  appointment  and  term  of  office, 

§  2.  Authority  and  duties  of. 

§  3.  Power  of  appointment  of  employees. 

§  4.  Allowance  for  expenses. 

§  5.  Powers  and  duties  to  be  regulated  by  law. 

§  6.  Convict  labor  to  be  regulated. 

ARTICLE  XI. 

CITIES,  COUNTIES,  AND  TOWNS. 

§     1.     Counties  as  subdivisions  of  the  state. 
{     2.     Removal  of  county  seats. 


CONSTITUTION  OF  1879.  Ixxix 

§     3.     New  counties,  establislimont  of. 

§     4.     County  goveinnients  to  be  uniform,  under  general  laws. 

§     5.     Boards  of  supervisors,  election  and  appointment  of. 

§     6.     Municipal  corporations  to  be  controlled  by  general  lawa. 

§     7.     City  and  county  governments  may  be  consolidated. 

§     7i.  Freeholders'  charters  for  counties. 

§     8.     City  charters,  how  framed  and  ratified. 

§     8J.  City  and  county  charters,  to  contain  what. 

§     8a.  Panama-Pacific  International  Exposition. 

§     9.     Compensation  of  ofiicers. 

§  10.     State  taxes,  no  release  or  discharge  from. 

§  11.  Local  police,  sanitary,  and  other  regulations  may  be 
enforced. 

§  12.     Assessment  and  collection  of  taxes. 

§  13.     Powers  not  to  be  delegated  to  special  commission,  etc. 

§  13J.  Payment  of  bonds. 

§  14.     Inspection  ofiicers,  appointment  of. 

§  15.  Private  property  not  liable  for  corporate  debt  of  munici- 
pality. 

§   16.     Moneys,  etc.,  to  be  deposited  with  treasurer. 

§  IG^.  Deposit  of  public  moneys. 

§   17.     Making  profit  out  of  public  funds  a  felony. 

§  18.     Eestriction  on  power  to  incur  indebtedness. 

§  19.     Municipal  ownership  of  public  utilities. 

ARTICLE  XII. 

CORPORATIONS. 

Corporations  to  be  formed  under  general  laws. 
Dues  to  be  secured  by  individual  liability,  etc. 
Stockholders  to  be  individually  liable. 
Corporations   construed. 
Banking  prohibited. 


§ 

1. 

§ 

2. 

§ 

3. 

§ 

4. 

§ 

5. 

IXXX  CONSTITUTION   OF    1879. 

§     6.  Existing  charters,  when  invalid. 

§     7.  Charters  not  to  be  extended,  nor  forfeiture  remitted, 

§     8.  All  franchises  subject  to  the  right  of  eminent  domain. 

§     9.  Restrictions  on  powers  of  corporations. 

§  10.  Liabilities  of  franchise  under  lease  or  grant. 

§  11.  Corporation  stock,  restriction  on  issue  of. 

§  12.  Election  of  directors — Cumulative  or  distributive  votes. 

§  13.  State   not   to   loan   its   credit   nor   subscribe   to   stock   of 

corporations. 

§  14.  Corporations   to   have   office   for   transaction   of   business 

in  stocks. 

§  15.  Foreign  corporations,  conditions. 

§  16.  Corporations,  where  to  be  sued. 

§  17.  Transportation  companies,  rights  and  liabilities  of. 

§  18.  Officers  of  corporations,  restriction  as  to  interests. 

§  19.  Free  passes  on  railroads  prohibited  to  state  officials. 

§  20.  Fares  and  freights  to  be  regulated  by  government. 

§  21.  Discrimination  in  charges  by  carriers  forbidden. 

§  22.  Railroad  commission,  organization  of. 

§  23.  Railroad  commission,  regulation  of  public  utilities. 

§  24.  Legislature  to  pass  laws  to  enforce  this  article. 

ARTICLE  XIII. 

REVENUE  AND  TAXATION. 

§  1,  Taxation  to  be  in  proportion  to  value. 

§  li.  United  States  army,  navy,  marine  and  revenue  service. 

§  IJ.  Churches  exempt  from  taxation. 

§  IJ.  Bonds  of  state  and  municipalities  exempt  from  taxation. 

§  2.  Land  and  improvements  to  be  separately  assessed. 

§  3.  Sectionized  and  unsectionized  land,  how  assessed. 

§  4.  Securities,  taxable. 

§  5.  Contract  of  borrower  to  pay  tax  on  loan  void. 


CONSTITUTION   OF    1879.  Ixxxi 

§     6.     Power   of   taxation   cannot  be  surrendered. 

§     7.     Payment  of  taxes  by  installments. 

§     8.     Annual  statement  of  property  to  be  given. 

§     9.     State  board  of  equalization. 

§  10.     Property,  where  assessed. 

§   lOi.  Personal  property  to  extent  of  $100  exempt. 

§   11.     Income  taxes. 

§  12.     Poll  tax. 

§   12J.  Young  trees  and  vines  exempt  from  taxation. 

§   13.     Laws  to  be  passed  by  legislature. 

§  14.     Taxation  for  state  purposes. 


ARTICLE  XIV. 
WATER  AND  WATER  RIGHTS. 

ARTICLE  XV. 

HARBOR  FRONTAGES,  ETC. 

ARTICLE  XVI. 

STATE  INDEBTEDNESS. 

ARTICLE  XVII. 

LAND  AND  HOMESTEAD   EXEMPTION. 

§  1.     Homesteads. 

§  2.     Land  monopoly. 

§  3.     Lands  granted  only  to  actual  settlers. 


Ixxxii  CONSTITUTION   OF    1879. 

ARTICLE  XVIII. 

AMENDING  AND  REVISING  THE  CONSTITUTION. 

§  1.     Proposal  of  amendments — Submission  to  vote. 
i  2.     Revision — Convention  for. 

ARTICLE  XIX. 

CHINESE. 

§  1.  Protection  from  alien  paupers,  etc. 

§  2.  Corporations  prohibited  from  hiring  Chinese. 

§  3.  Public  works,  Chinese  not  to  be  employed  on. 

§  4.  Coolieism  prohibited — Removal  of  Chinese. 

ARTICLE  XX. 

MISCELLANEOUS  SUBJECTS. 

§     1.  Seat  of  government. 

§     2.  Dueling,  disabilities  arising  from. 

§     3.  Oath  of  office. 

§     4.  Election  and  appointment  of  officers  and  commissionera. 

§     5.  Fiscal  year. 

§     6.  Suits  against  state. 

§     7.  Marriage  contracts,  validity  of. 

§     8.  Separate  property  of  husband  and  wife. 

§     9.  Perpetuities  not  allowed. 

§  10.  Disqualification  for  office  by  giving  or  taking  bribe. 

§   11.  Exclusion  from  office,  jury,  and  right  of  suffrage  of  cer- 
tain persons — Protection  of  right  of  suffrage. 

§  12.  Residence,  when  absence  not  to  affect. 

§  13.  Plurality  vote  to  elect. 

§  14.  State  board  of  health. 


CONSTITUTION  OP  1879.  Ixxxiii 

§  15.  Mechanic's  lien. 

§  16.  Term  of  office,  duration  of. 

§  17.  Eight  hours  a  legal  day's  labor. 

§   18.  Sex  not  a  disqualification  for  business. 

§   19.  Payment  of  expenses  of  convention. 

§  20.  Election  of  officers — Term,  when  commences. 

ARTICLE  XXI. 
BOUNDAEY. 

ARTICLE  XXII. 

SCHEDULE. 

Laws  to  remain  in  force. 
Eecognizances,  obligations,  etc.,  unaffected. 
Courts,  save  justices'  and  police  courts,  abolished — Trans- 
fer of  records,  books,  etc. 
State  printing. 
Ballots  to  be  printed. 

Eegisters,  poll-books,  etc.,  to  be  furnished. 
Who  entitled  to  vote  for  constitution. 
Canvass  of  returns  of  vote. 
Computing  returns  of  vote. 
Terms  of  officers  first  elected. 
Laws  applicable  to  judicial  system. 
Constitution,  when  to  take  effect. 

ARTICLE  XXIIL 
RECALL  OP  OFEICEES. 


§ 

1. 

§ 

2. 

§ 

3. 

§ 

4. 

§ 

5. 

§ 

6. 

§ 

7. 

§ 

8. 

§ 

9. 

§ 

10. 

! 

11. 

§ 

12. 

CONSTITUTION 

OF  THE 

STATE  OF  CALIFORNIA. 


Adopted  in   Convention,  at   Sacramento,   March   3, 

A.  D.  1879 ;  Ratified  by  a  Vote  op  the  People 

ON  Wednesday,  ]May  7,  1879. 


PREAMBLE  AND  DECLARATION  OP  RIGHTS. 

PEEAMBLE. 

"We,  the  people  of  the  state  of  California,  grateful 
to  Almighty  God  for  our  freedom,  in  order  to  secure 
and  perpetuate  its  blessings,  do  establish  this  constitu- 
tion. 

STATE  OF  CALIFORNIA.— The  names  "The  State  of  Calif or- 
Dia"  and  "The  People  of  the  State  of  California"  describe  the 
same  party,  and  a  statute  which  requires  a  bond  to  be  given  in 
one  name  is  satisfied  by  a  bond  given  in  the  other.  (People  v. 
Love,  19  Cal.  G7G.) 

FORM  OF  GOVERNMENT.— Our  system  is  not  a  pure  dem- 
ocracy, but  a  representative  republican  government.  (Hobart 
V.  Supervisors,  17  Cal.  23.) 

Constitution — 1  H) 


CONSTITUTION   OF   1879.  ? 

'AETICLE  T. 

DECLARATION  OF  EIGHTS. 

§     1.  Inalienable  rights. 

§     2.  Political  power. 

§     3.  Relation  to  the  American  Union. 

§     4.  Religious  freedom. 

§     5.  Habeas  corpus. 

§     6.  Right  to  bail — Eights  of  witnesses. 

§     7.  Trial  by  jury. 

§     8.  Offenses,  how  prosecutecl. 

§     9.  Liberty  of  speech  and  freedom  of  the  press — Trials  for 

libel. 

§   10.  Popular  assemblies. 

§   11.  Uniformity  of  laws. 

§   12.  Military  power. 

§  13.  Personal  and  property  rights. 

§  14.  Eminent  domain. 

§  15.  Imprisonment  in  civil  cases. 

§  16.  Laws  prohibited — Bills  of  attainder,  ex  post  facto,  etc. 

§  17.  Eights  of  foreign  residents. 

§  18.  Slavery  prohibited. 

§  19.  Searches   and   seizures,   restriction  on. 

§  20.  Treason  defined. 

§  21.  Privileges  and  immunities  of  citizens. 

§  22.  Provisions  of  constitution  construed. 

§  23.  Eights  retained  by  the  people. 

§  24.  Property  qualification  not  required. 

S  25.  Right  to  fish  upon  public  lands. 


b  CONSTITUTION  OF  1879.  Art.  I,  §  1 

Inalienable  rights. 

Section  1.  All  men  are  by  nature  free  and  independ- 
ent, and  have  certain  inalienable  rights,  among  which 
are  those  of  enjoying  and  defending  life  and  liberty ;  ac- 
quiring, possessing,  and  protecting  property ;  and  pursu- 
ing and  obtaining  safety  and  happiness. 

PROPERTY. — The  right  of  acquiring,  possessing,  and  protect- 
ing property  is  one  of  the  primary  objects  of  government,  is 
guaranteed  by  the  constitution,  and  cannot  be  impaired  by  the 
legislature.     (Billings  v.  Hall,  7  Cal.  1.) 

The  right  of  protecting  property  is  not  the  mere  right  to  pro- 
tect it  by  individual  force,  but  the  right  to  protect  it  by  the 
law  of  the  land,  and  the  force  of  the  body  politic.  (Billings  v. 
Hall,  7  Cal.  1.) 

The  right  of  property  antedates  all  constitutions.  This  right 
is  invaded  if  the  owner  is  not  at  liberty  to  contract  with  others 
respecting  the  use  to  which  lie  may  subject  his  property,  or  the 
manner  in  which  he  may  enjov  it.  (Stimson  M.  Co.  v.  Braun, 
136  Cal.  122,  89  Am.  St.  Eep.  116,  68  Pac.  481,  57  L.  R.  A.  726.) 

A  statute  declaring  that  all  contracts  for  the  construction  of 
■buildings,  with  certain  exceptions,  must  provide  for  the  pay- 
ment of  the  contract  price  in  money,  is  in  violation  of  this 
section.  (Stimson  M.  Co.  v.  Braun,  136  Cal.  122,  89  Am.  St. 
Rep.  116,  6S  Pac.  481,  57  L.  E.  A.  726.) 

The  right  to  acquire  property  is  the  right  to  use  the  proper 
means  to  attain  the  end;  and  the  use  of  such  means  cannot  be 
prohibited  b\'  the  legislature,  unless  the  peace  and  safety  of 
the  state  require  it.      (Ex  parte   Newman,  9  Cal.  502.) 

An  act  requiring  a  party  to  pay  for  improvements  put  upon 
his  land  by  a  trespasser,  against  his  will,  is  void.  (Billings  v. 
Hall,  7  Cal.  1.) 

So  an  act  altering  or  destroying  the  nature  or  tenure  of 
estates  is  vo'd.      (Dewey  v.  Lambier,  7  Cal.  347.) 

The  provision  of  section  1203  of  the  Code  of  ('ivil  Procedure 
that  a  failure  to  comply  with  the  section  by  filing  a  good  and 
sufficient  bund  with  the  building  contract  in  an  amount  equal  to 
at  least  twenty-five  per  cent  of  the  contract  price  shall  render 
"the  owner  and  contractor  jointly  and  severally  liable  in  dam- 


Art.  I;  §  1  CONSTITUTION  OF  1879.  4 

ages  to  any  and  all  materialmen,  and  subcontractors  entitled  to 
liens  upon  property  affected  by  said  contract,"  is  an  unreason- 
able restraint  upon  the  owner  of  the  property  in  the  use  thereof, 
and  is  an  unreasonable  restriction  upon  the  power  to  make  con- 
tracts, and  IS,  therefore,  unconstitutional.  (Gibbs  v.  Tally,  133 
Cal.  373.  65  Pac.  970,  60  L.  E.  A.  815;  San  Francisco  L.  Co.  v. 
Bibb,  139  Cal.  193,  72  Pac.  964;  Montague  v.  Furness,  145  Cal. 
205,  78  Pac.  640.) 

An  act  authorizing  the  probate  court  to  order  a  sale  of  the 
property  of  a  decedent,  when  it  is  for  the  best  interest  of  the 
estate,  is  valid.  (Estate  of  Porter,  129  Cal.  86,  79  Am.  St.  Eep. 
78,  61  Pac.  659.) 

But  such  an  act  cannot  affect  estates  of  decedents  who  died 
before  the  passage  of  the  act.  (Brenham  v.  Story,  39  Cal.  179; 
Estate  of  Packer,  125  Cal.  396,  73  Am.  St.  Rep.  58,  58  Pac.  59; 
Estate  of  Freud,  131  Cal.  667,  82  Am.  St.  Rep.  407,  63  Pac. 
1080.) 

An  ordinance  requiring  street-car  transfers  to  be  issued  and 
delivered  within  the  street-cars  from  which  the  transfer  is  made, 
and  received  only  within  the  car  to  which  it  is  made,  and  for- 
bidding any  person  to  whom  a  transfer  is  issued  to  give  away, 
transfer,  or  sell  the  same,  is  not  in  violation  of  this  section. 
(Ex  parte  Lorenzen,  128  Cal.  431,  79  Am.  St.  Rep.  47,  61  Pac. 
68,  50  L.  R.  A.  55.) 

An  act  requiring  litigants  to  take  the  oath  of  allegiance  is 
not  in  violation  of  this  section.      (Cohen  v.  Wright,  22  Cal.  293.) 

An  act  making  it  unlawful  to  lauy  or  sell  ctuail  is  not  in  vio- 
lation of  this  section.  (Ex  parte  Kenneke,  136  Cal.  527,  89  Am. 
St.  Rep.  177,  69  Pac.  261.) 

A  statute  exempting  a  municipal  corporation  from  liability 
for  damages  for  injuries  sustained  by  any  person  on  its  graded 
streets,  but  making  the  ofHcers  of  "the  city  liable  therefor,  is 
valid.     (Parsons  v.  San  Francisco,  23  Cal.  462.) 

The  act  of  1907,  page  122,  prohibiting  waste  from  artesian 
wells  does  not  unconstitutionally  interfere  with  private  prop- 
erty.    (Ex  parte  Elam,  6  Cal.  App.  233,  91  Pac.  811.) 

An  ordinance  providing  for  the  destruction  of  dogs  not  li- 
censed is  not  an  unconstitutional  interference  with  property. 
(In  re  Ackerman,  6  Colo.  App.  5,  91  Pac.  429.) 

A  provision  in  the  specifications  for  public  street  work  that 
no  unnaturalized  alien  should  be  employed  in  the  work,  except 


5  CONSTITUTION  OF  1879.  Art.  I,  §  1 

with  the  permission  of  the  highway  commission,  is  invalid. 
(City  Street  Imp.  Co.  v.  Kroh,  158  Cal.  308,  110  Pac.  933.) 

Section  384  of  the  Penal  Code,  subdivision  3,  declaring  it  a 
misdemeanor  to  willfully  and  negligently  build  a  fire  on  one's 
own  land  for  the  purposes  of  burning  brush,  etc.,  is  violative 
of  the  federal  and  state  constitutions  as  an  unreasonable  and 
oppressive  interference  with  the  right  to  use  and  enjoy  property. 
(In  re  McCapes,   157  Cal.  27,   106  Pac.  229.) 

The  provision  of  the  mechanic's  lien  law  allowing  an  attor- 
ney's fee  to  plaintiff  but  not  to  defendant  is  in  violation  of  this 
provision.  (Builders'  Supply  Depot  v.  O'Connor,  150  Cal.  265, 
119  Am.  St.  Eep.  193,  88  Pac.  982,  11  Ann.  Cas.  712.) 

The  right  of  property  includes  the  right  to  dispose  of  such 
property  in  such  manner  as  the  owner  pleases,  and  to  sell  it  for 
such  price  as  he  can  obtain  in  fair  barter.  (Ex  parte  Quarg, 
149  Cal.  79,  117  Am.  St.  Eep.  115,  84  Pac.  766,  5  L.  E.  A.,  N.  S., 
183,  9  Ann.  Cas.  747.) 

The  mechanic's  lien  law  is  not  unconstitutional  because  it 
abridges  the  right  of  contract  in  respect  to  one's  property. 
(Stimson  Mill  Co.  v.  Nolan,  5  Cal.  App.  754,  91  Pac.  262.) 

Business. — The  legislature  cannot  forbid  the  lawful  pursuit 
of  a  lawful  occupation  on  one  day  of  the  week  any  more  than 
it  can  forbid  it  altogether.  (Ex  parte  Newman,  9  Cal.  502. 
But  see  Ex  parte  Andrews,  18  Cal.  678.) 

But  this  provision  does  not  prevent  the  legislature  from  pro- 
hibiting the  conducting  of  offensive  trades  within  the  limits  of 
a  city.     (Ex  parte  Shrader,  33  Cal.  279.) 

So  an  ordinance  making  it  unlawful  for  any  person  to  con- 
duct a  laundry  within  certain  limits  without  a  certificate  from 
the  health  oHicer  as  to  its  sanitary  condition,  and  a  certificate 
from  the  fire  wardens  as  to  the  condition  of  the  heating  appli- 
ances, and  forbidding  the  operation  of  any  laundry  between  10 
P.  M.  and  6  A.  M.,  or  on  Sunday,  is  valid.  (Ex  parte  Moynier, 
65  Cal.  33,  2  Pac.  728.) 

An  ordinance  making  it  unlawful  to  play  any  instrument, 
etc.,  in  any  saloon,  etc.,  after  midnight,  and  for  any  female  to 
be  in  any  saloon,  etc.,  after  midnight,  does  not  violate  this  pro- 
vision.    (Ex  parte  Smith  &  Keating,  38  Cal.  702.) 

A  statute  limiting  the  compensation  of  employment  agencies 
is  invalid.  (Ex  parte  Dickey,  144  Cal.  234,  103  Am.  St.  Eep. 
82,  77  Pac.  924,  6G  L.  E.  A.  928,  1  Ann.  Cas.  428.) 


Art.  I,  §  2  CONSTITUTION  OP  1879.  6 

When  a  lawful  business  is  of  a  beneficial  character,  and  not 
dangerous  to  the  public,  it  cannot  be  subjected  to  police  regu- 
lation. (Ex  parte  Diekev,  lU  Cal.  234,  103  Am.  St.  Kep.  82, 
77  Pac.  924,  66  L.  E.  A.  928,  1  Ann.  Cas.  428.) 

It  is  always  a  judicial  question  whether  any  particular  regu- 
lation of  the  constitutional  right  of  the  citizen  to  engage  in  an 
innocent  and  useful  business  is  a  valid  exercise  of  the  legisla- 
tive power.  (Ex  parte  Hayden,  147  Cal.  649,  109  Am.  St.  Rep. 
183,  82  Pac.  315.) 

An  act  making  it  unlawful  to  issue  trading  stamps  and 
coupons  is  unconstitutional.  (Ex  parte  Drexel,  147  Cal.  763,  82 
Pac.  429,  2  L.  E.  A.,  N.  S.,  588,  3  Ann.  Cas.  878.) 

The  legislature  has  the  constitutional  right  to  modify  the 
common  law  by  taking  away  the  revocable  nature  of  the  license 
granted  by  a  ticket  to  a  place  of  public  amusement.  (Greenberg 
V.  Western  Turf  Assn.,  148  Cal.  126,  113  Am.  St.  Rep.  216,  82 
Pac.  684.) 

Sunday  laws. — In  Ex  parte  Newman,  9  Cal.  502,  it  was  held 
that  an  act  making  it  unlawful  to  transact  any  business  upon 
the  Sabbath,  except  certain  designated  ones,  was  in  violation 
of  this  provision,  on  the  ground  that  the  legislature  can  no  more 
forbid  the  lawful  pursuit  of  a  lawful  occujiation  on  one  day  of 
the  week  than  it  can  forbid  it  altogether.  This  decision  was 
overruled  in  Ex  parte  Andrews,  18  Cal.  678,  and  Ex  parte  Bird, 
19  Cal.  130. 

An  act  making  it  a  misdemeanor  to  keep  open  a  barber-shop 
on  Sundays  or  other  holidays  is  in  violation  of  this  section. 
(Ex  parte  Jentzsch,  112  Cal.  468,  44  Pac.  803,  32  L.  R.  A.  664.) 

Life,  liberty,  etc, — A  law  imposing  the  death  penalty  upon  a 
person  undergoing  a  life  sentence,  who,  with  malice  afore- 
thought, commits  an  assault  upon  another  with  a  deadly  weapon, 
or  by  any  means  likely  to  produce  bodily  injury,  is  valid.  (In 
re  Finley,  1  Cal.  App.  198,  81  Pac.  1041.) 

Political  power. 

Sec.  2.  All  political  power  is  inherent  in  the  people. 
Government  is  instituted  for  the  protection,  security,  and 
benefit  of  the  people,  and  they  have  the  right  to  alter  or 
reform  the  same  whenever  the  public  good  may  require  it. 


7  CONSTITUTION  OP  1879.       Art.  I,  §§  3,  4 

TIIE  PEOPLE. — The  people  are  such  as  are  born  upon  the 
soil,  and  such  foreigners  as  may  elect  to  assume  the  obligations 
of  citizens  by  naturalization.  Those  who  are  not  of  the  people 
have  no  share  in  political  power;  and,  therefore,  an  alien  is  not 
eligible  to  an  ofSce  in  this  state.  (Walther  v.  Eabolt,  30  Cal. 
185.) 

Relation  to  the  American  Union. 

Sec.  3.  The  state  of  California  is  an  inseparable  part 
of  the  American  Union,  and  the  conrstitiition  of  the 
United  States  is  the  supreme  law  of  the  land. 

AMERICAN  UNION.— The  United  States  constitution  is  the 
supreme  law  of  the  land.  (U.  S.  Const.,  art.  6,  sec.  2;  Prigg  v. 
Commonwealth,  16  Pet.  628,  10  L.  Ed.  1094;  New  Jersey  v. 
Wilson,  7  Cranch,  164,  3  L.  Ed.  303;  Terrett  v.  Taylor,  9  Cranch, 
43,  3  L.  Ed.  650;  Von  Hoffman  v.  Quincy,  4  Wall.  535,  18  L.  Ed. 
403;  Taylor  v.  Taintor,  16  Walh  366,  21  L.  Ed.  287;  Ex  parte 
Romaine,  23  Cal.  585.) 

The  object  of  the  United  States  constitution  was  to  establish 
a  government  which,  to  the  extent  of  its  powers,  should  be 
supreme  within  its  sphere  of  action.  (Dobbins  v.  Commrs.  of 
Erie  Co.,  16  Pet.  435,  10  L.  Ed.  1022;  Ableman  v.  Booth,  21 
How.  520,  16  L.  Ed.  175;  Cohens  v.  Virginia,  6  Wheat.  264,  5  L. 
Ed.  257;  United  States  v.  Rhodes,  1  Abb.  U.  S.  44,  Fed.  Cas. 
No.  16,151;  McCulloch  v.  Maryland,  4  Wheat.  316,  4  L.  Ed. 
579.) 

The  constitution  of  the  United  States  is  a  part  of  the  organic 
law  of  each  state.  (Taylor  v.  Taintor,  16  Wall.  366,  21  L.  Ed. 
287;  Ex  parte  Romaine,  "^23  Cal.  585.) 

This  section  does  not  have  the  effect  to  make  the  various 
provisions  of  the  constitution  of  the  United  States  a  part  of 
our  state  constitution.  (People  v.  Nolan,  144  Cal.  75,  77  Pac. 
774.) 

Religious  freedom. 

Sec.  4.  The  free  exercise  and  enjoyment  of  reliirions 
profession  and  worship,  without  discrimination  or  pref- 


Art.  I,  §  4  CONSTITUTION  OF   1879.  8 

erence,  shall  be  forever  guaranteed  in  this  state;  and 
no  person  shall  be  rendered  incompetent  to  be  a  witness 
or  juror  on  account  of  his  opinions  on  matters  of  reli- 
gious belief;  but  the  liberty  of  conscience  hereby  se- 
cured shall  not  be  so  construed  as  to  excuse  acts  of 
licentiousness,  or  justify  practices  inconsistent  with  the 
peace  or  safety  of  this  state. 

SUNDAY  LAWS.— In  Ex  parte  Newman,  9  Cal.  502,  it  was 
held  that  an  act  making  it  iinlawful  to  transact  any  liusiness 
upon  the  Sabbath,  except  certain  designated  ones,  was  in  vio- 
lation of  this  provision.  In  reaching  this  conclusion,  the  fol- 
lowing principles  were  laid  down: 

Our  constitutional  theory  regards  all  religions,  as  such,  as 
equally  entitled  to  protection  and  equally  unentitled  to  prefer- 
ence. Where  there  is  no  ground  or  necessity  upon  which  a 
principle  can  rest  but  a  religious  one,  then  the  constitution  steps 
in  and  says  that  it  shall  not  be  enforced  by  authority  of  law. 

"When  the  citizen  is  compelled  by  the  legislature  to  do  any 
aflSrmative  act,  or  to  refrain  from  doing  anything,  merely  be- 
cause it  violates  a  religious  principle  or  observance,  the  act  is 
unconstitutional. 

This  provision  does  not  mean  to  guarantee  merely  toleration, 
but  religious  liberty  in  its  largest  sense,  and  a  perfect  equality, 
without  distinction,  between  religious  sects.  An  enforced  ob- 
servance of  a  day  held  sacred  by  one  of  these  sects  is  a  dis- 
crimination in  favor  of  that  sect,  and  a  violation  of  the  re- 
ligious freedom  of  the  others. 

This  decision,  however,  has  been  overruled  by  later  cases: 
Ex  parte  Andrews,  18  Cal.  678;  Ex  part©  Bird,  19  Cal.  130; 
Ex  parte  Burke,  59  Cal.  6,  43  Am.  Kep.  231. 

WITNESSES. — This  section  means  that  a  witness  is  com- 
petent without  respect  to  his  religious  sentiments  or  convic- 
tions— the  law  leaving  his  competency  to  legal  sanctions,  or,  at 
least,  to  considerations  independent  of  religious  sentiments  and 
convictions.     (Fuller  v.  Fuller,  17  Cal.  605.) 


9  CONSTITUTION  OF  1879.       Art.  I,  §§  5,  6 

Habeas  corpus. 

Sec.  5.  The  privilege  of  the  writ  of  liabeas  corpus 
shall  not  be  suspended  unless  when,  in  cases  of  rebellion 
or  invasion,  the  public  safety  may  require  its  suspension, 

HABEAS  CORPUS. — This  right  is  to  be  exercised  in  a 
reasonable  manner.  The  writ  should  not  issue  to  run  out  of  the 
county,  unless  for  good  cause  shown — as  the  absence,  disability, 
or  refusal  to  act  of  the  local  judge — or  other  reason  showing 
that  the  object  and  reason  of  the  law  requires  its  issuance.  Nor 
should  it  issue  from  the  supreme  court  in  any  case,  except  under 
the  same  circumstances.     (Ex  parte  Ellis,  11  Cal.  222.) 

The  writ  of  habeas  corpus  will  not  issue  when  the  restraint 
is  not  real,  but  merely  nominal  and  permissive.  (In  re  Gow,  139 
Cal.  242,  73  Pac.   145.) 

As  to  what  courts  may  issue  writs  of  habeas  corpus,  see 
article  6,  sections  4,  5;  People  v.  Turner,  1  Cal.  143,  52  Am. 
Dec.  295;  Ex  parte  Perkins,  2  Cal.  424 j  People  v.  Booker,  51 
Cal.  317;  Tyler  y.  Houghton,  25  Cal.  26. 

Right  to  bail — Rights  of  witnesses. 

Sec.  6.  All  persons  shall  be  bailable  by  sufficient 
sureties,  unless  for  capital  offenses  when  the  proof  is 
evident  or  the  presumption  great.  Excessive  bail  shall 
not  be  required,  nor  excessive  fines  imposed ;  nor  shall 
cruel  or  unusual  punishments  be  inflicted.  Witnesses 
shall  not  be  unreasonably  detained,  nor  confined  in  any 
room  where  criminals  are  actually  imprisoned. 

BAIL. — Admission  to  bail  in  capital  cases,  where  the  proof  is 
evident  or  the  presumption  great,  may  be  made,  under  our  con- 
stitution, matter  of  discretion,  and  may  bo  forbidden  by  the 
legislature.  In  all  other  cases  the  admission  to  bail  is  a  right 
of  the  accused,  which  no  judge  or  court  can  properly  refuse. 
(People  V.  Tinder,  19  Cal.  539,  81  Am.  Dec.  77.) 


Art.  I,  §  6  CONSTITUTION  OF  1879.  10 

An  act  making  admission  to  bail  matter  of  discretion  in  all 
cases  where  the  punishment  is  death,  unless  the  proof  is  evident 
or  the  presumption  great,  is  in  conflict  with  this  section. 
(People  V.  Tinder,  19  Cal.  539,  81  Am.  Dec.  77.) 

This  section  does  not  prevent  the  court  from  ordering  the 
defendant  into  custody  as  soon  as  the  trial  is  commenced.  (Peo- 
ple V.   Williams,  59  Cal.   674.) 

This  provision  applies  only  to  cases  in  which  the  party  has  not 
been  already  convicted.     (Ex  parte  Voll,  41   Cal.  29.) 

A  person  arrested  for  felony  must,  in  order  to  procure  bail, 
be  taken  before  the  magistrate  who  issued  the  warrant,  or  some 
other  magistrate  in  the  same  county.  (Ex  parte  Hung  Sin,  54 
Cal.  102.) 

The  court  should  not  refuse  to  accept  on  bail  a  surety  who  is  a 
nonresident  of  the  county  unless  there  is  some  circumstance  that 
would  reasonably  excite  suspicion  as  to  such  surety,  or  unless  it 
would  be  difficult  to  investigate  his  financial  standing.  (Ex 
parte  Euef,  8  Cal.  App.  468,  97  Pac.  89.) 

Sureties  on  a  bail  bond  may  qualify  with  property  real  or 
personal  in  the  county  or  elsewhere.  (Ex  parte  Ruef,  S  Cal. 
App.  468,  97  Pac.  89.) 

A  court  has  no  power  to  refuse  friends  and  relatives  of  the 
accused  as  bail  for  the  sole  reason  that  they  are  such.  (Ex  parte 
Ruef,  8  Cal.  App.  468,  97  Pac.  89.) 

WITNESSES. — A  person  detained  as  a  witness  ninety  days, 
and  after  several  continuances  not  satisfactorily  accounted 
for,  is  entitled  to  his  discharge  under  this  section.  (Ex  parte 
Dressier,  67  Cal.  257,  7  Pac.  645.) 

PUNISHMENT. — "Cruel  and  unusual  punishments"  are  pun- 
ishments of  a  barbarous  character  and  unknown  to  the  common 
law.     (State  v.  McCauley,  15  Cal.  429.) 

A  statute  authorizing  the  leasing  out  of  convicts  is  not  in 
violation  of  this  provision.      (State  v.  McCauley,   15   Cal.   429.) 

A  law  making  an  ofi'ense  punishable  "by  imprisonment  in  the 
state  prison  not  exceeding  five  years,  or  in  the  county  jail  not 
exceeding  six  months,  or  both,"  is  valid.  (People  v.  Perini,  94 
Cal.  573,  29  Pac.  1027.) 

An  act  imposing  merely  a  minimum  penalty  is  not  unconstitu- 
tional.    (In  re  Hallawell,  8  Cal.  App.  563,  97  P;ic.  320.) 

Imprisonment  in  the  county  jail  or  state  prison  is  not  unusual 
nor  cruel.     (In  re  O'Shea,  11  Cal.  App.  568,  105  Pac.  776.) 


11  CONSTITUTION  OF  1879.  Art.  I,  §  7 

Cruel  and  unusual  punishments  are  punishments  of  a  barbarous 
nature  unknown  to  the  common  law,  being  such  as  disgraced  the 
civilization  of  former  ages  and  made  one  shudder  with  horror  to 
read  of  them.      (In  re  O'Shea,  11  Cal.  App.  568,  105  Pac.  776.) 

The  death  penalty,  imposed  by  section  246  of  the  Penal  Code, 
upon  a  person  undergoing  a  life  sentence  who  commits  an  assault 
with  a  deadly  weapon,  is  not  a  cruel  or  unusual  punishment  for- 
bidden by  the  constitution.  (People  v.  Oppenheimer,  156  Cal. 
733,  106  Pac.  74.) 

Trial  by  jury. 

Sec.  7.  The  right  of  trial  by  jury  shall  be  secured 
to  all,  and  remain  inviolate ;  but  in  civil  actions  three- 
fourths  of  the  jury  may  render  a  verdict.  A  trial  by 
jury  may  be  waived  in  all  criminal  cases,  not  amount- 
ing to  felony,  by  the  consent  of  both  parties,  expressed 
in  open  court,  and  in  civil  actions  by  the  consent  of 
the  parties,  signified  in  such  manner  as  may  be  pre- 
scribed by  law.  In  civil  actions,  and  cases  of  mis- 
demeanor, the  jury  may  consist  of  twelve,  or  of  any 
number  less  than  twelve  upon  which  the  parties  may 
agree  in  open  court. 

TRIAL  BY  JURY.— This  section  only  gives  a  right  to  a  trial 
by  jury  in  cases  where  the  right  existcti  at  common  law.  (Cas- 
sidy  V.  Sullivan,  64  Cal.  266,  28  Pac.  234;  Koppikus  v.  State 
Capitol  Commrs.,  16  Cal.  248j  Woods  v.  Varnum,  83  Cal.  6;;0, 
24  Pac.  843.) 

It  cannot  be  demanded  as  of  right  in  an  equity  case,  but  only 
in  criminal  and  civil  cases  in  which  an  issue  of  fact  is  joined. 
(Koppikus  v.  State  Capitol  Commrs.,  16  Cal.  248.) 

The  right  docs  not  exist  in  actions  for  divorce  (Cassidy  v. 
Sullivan,  64  Cal.  266,  28  Pac.  234);  condemnation  proceedings 
(Koppikus  V.  State  Capitol  roinmrs.,  16  Cal.  248);  proceedings 
for  the  removal  of  public  officers  (Woods  v.  Varnum,  85  Cal. 


Art.  I,  §  7  CONSTITUTION  OF   1879.  12 

639,  24  Pac.  843) ;  or  in  cases  of  equity  jurisdiction.  (Pacific 
Ey.  Co.  V.  Wade,  91  Cal.  449,  25  Am.  St.  Rep.  201,  27  Pac.  768, 
13  L.  E.  A.  754.) 

A  party  is  not  entitled  to  a  jury  trial  in  an  action  brought  to 
abate  a  nuisance,  and  for  an  injunction  to  prevent  it,  although 
damages  are  also  prayed  for.  (McCarthy  v.  Gaston  Ridge  Mill 
etc.  Co.,  144  Cal.  542,  78  Pac.  7.) 

As  to  the  right  to  a  jury  trial  in  an  action  to  quiet  title,  where 
the  defendant  is  in  possession,  see  Hyde  v.  Redding,  74  Cal.  493, 
16  Pac.  380;  Angus  v.  Craven,  132  Cal.  691,  64  Pac.  1091,  and 
cases  there  cited. 

An  act  providing  for  the  removal  of  officers  for  extortion,  and 
providing  generally  that  the  practice  governing  other  civil 
actions  shall  apply  thereto,  does  not  deprive  the  defendant  of  a 
jury  trial.     (Ryan  v.  Johnson,  5  Cal.  86.) 

The  refusal  to  allow  a  jury  is  mere  error  and  cannot  be 
reviewed  by  writ  of  review.  (Goodman  v.  Superior  Court,  8 
Cal.  App.  232,  96  Pac.  395.) 

Both  in  criminal  cases  not  amounting  to  felony,  and  in  civil 
actions,  the  right  of  trial  by  jury  may  be  waived.  (Goodman  v. 
Superior  Court,  8  Cal.  App.  232,  96  Pac.  395.) 

The  granting  of  a  nonsuit  is  not  violation  of  the  constitu- 
tional right  to  a  jury  trial  where  it  already  appears  that  plaintiff 
is  guilty  of  contributory  negligence.  (Bohn  v.  Pacific  Electric 
Ey.  Co.,  5  Cal.  App.  622,  91  Pac.  115.) 

Section  1192  of  the  Penal  Code,  conferring  upon  the  court  the 
power  to  determine  the  degree  of  a  crime  upon  a  plea  of  guilty, 
is  not  unconstitutional  as  infringing  upon  the  right  of  trial  by 
jury.  (People  v.  Chew  Lan  Ong,  141  Cal.  550,  99  Am.  St.  Rep. 
88,''75  Pac.  186.) 

The  power  of  the  court  to  grant  a  new  trial  for  insufficiency 
of  the  evidence,  or  for  excessive  damages,  does  not  violate  the 
right  of  trial  by  jury.  (Ingraham  v.  Weidler,  139  Cal.  588,  73 
Pac.  415.) 

Petty  offenses. — This  provision  does  not  prohibit  the  legis- 
lature from  providing  for  summary  proceedings  without  a  jury 
in  cases  of  such  petty  offenses  as  were  enumerated  in  the  English 
statutes  at  the  time'of  the  separation  of  the  American  colonies 
from  England,  or  in  cases  where  the  offenses  are  intrinsically 
of  the  same  nature  and  degree.  (Ex  parte  Wong  You  Ting,  106 
Cal.  296,  39  Pac.  627;  In  re  Fife,  110  Cal.  8,  42  Pac.  299.) 


13  CONSTITUTION  OF  1879.  Art.  I,  §  7 

But  where  the  offense  falls  within  the  legal  or  common-law 
notion  of  crime  or  misdemeanor,  and  is  embraced  in  the  criminal 
code  of  the  state,  the  constitutional  right  of  trial  by  jury  cannot 
be  evaded.  (Taylor  v.  Eeynolds,  92  Cal.  573,  28  Pac,  688;  Ex 
parte  Wong  You  Ting,  106  Cal.  296,  39  Pac.  C27.) 

A  jury  is  not  a  necessary  constituent  part  of  a  court  for  the 
trial  of  a  misdemeanor.  (Wittman  v.  Police  Court,  145  Cal. 
474,  78  Pac.  1052.) 

Vicinage. — By  the  common  law,  the  trial  of  all  crimes  is  re- 
quired to  be  by  a  jury  selected  from  the  vicinage  or  county 
where  the  crime  is  alleged  to  have  been  committed;  and  the 
same  right  is  secured  by  this  section.  Therefore,  section  1033 
of  the  Penal  Code,  allowing  a  criminal  action  to  be  removed  to 
another  county  without  the  consent  of  the  defendant,  is  uncon- 
stitutional. (People  V.  Powell,  87  Cal.  348,  25  Pac.  481,  11  L. 
R.  A.  75.) 

Jurors. — A  law  taking  away  the  challenge  to  a  juror  for  im- 
plied bias,  on  the  ground  that  the  juror  has  formed  or  expressed 
an  unqualified  opinion  as  to  the  guilt  of  the  accused,  is  constitu- 
tional.    (People  V.  Ah  Lee  Boon,  97  Cal.  171,  31  Pac.  933.) 

The  court  may,  in  its  discretion,  permit  a  separation  of  the 
jurors  during  the  impaneling  of  the  jury  and  the  subsequent 
progress  of  the  trial.  (People  v.  Chaves,  122  Cal.  134,  54  Pac. 
596.) 

Waiver  of  jury  trial. — The  legislature  alone,  and  not  the  court, 
can  determine  what  shall  constitute  a  waiver  of  a  jury  trial. 
(Exline  V.  Smith,  5  Cal.  112.) 

The  right  to  a  jury  trial  is  not  waived  by  going  to  trial  after 
it  has  been  denied,  and  the  denial  of  it  may  be  reviewed  upon 
an  appeal  from  the  judgment.  (In  re  Robinson,  106  Cal.  493,  39 
Pac.  862.) 

A  plea  of  guilty  is  a  waiver  of  a  jury  trial.  (People  v.  Len- 
nox, 67  Cal.  113,  7  Pac.  260.)  Also  a  failure  to  demand  it  in  a 
civil  case  before  the  trial  begins.  (Polack  v.  Gurnee,  66  Cal. 
266,  5  Pac.  229,  610.) 

Refusal  of,  how  reviewed. — The  denial  of  a  jury  trial  may  be 
reviewed  iipon  an  appeal  from  a  judgment  (In  re  Robinson,  lOG 
Cal.  493,  39  Pac.  862),  but  cannot  be  reached  by  a  writ  of  habeas 
corpus.     (Ex  parte  Miller,  82  Cal,  454,  22  Pac.  1113.) 


Art.  I,  §  8  CONSTITUTION  OP  1879.  14 

Refusal  of  a  court  to  allow  a  jury  trial  cannot  be  reviewed 
by  certiorari.  (Wittman  v.  Police  Court,  145  Cal.  474,  78  Pac. 
1052.) 

Offenses,  how  prosecuted. 

Sec.  8.  Offenses  heretofore  required  to  be  prose- 
cuted by  indictment  shall  be  prosecuted  by  informa- 
tion, after  examination  and  commitment  by  a  magis- 
trate, or  by  indictment,  with  or  without  such  ex- 
amination and  commitment,  as  may  be  prescribed  by 
law.  A  grand  jury  shall  be  drawn  and  summoned  at 
least  once  a  year  in  each  county. 

INDICTMENT  AND  INFORMATION.— A  crime  committed 
before  the  adoption  of  the  new  constitution  may,  after  such 
adoption,  be  prosecuted  by  information.  (People  v.  Campbell, 
59  Cal.  243,  43  Am.  Rep.  257.) 

As  to  the  distinction  between  an  indictment  and  a  present- 
ment, see  In  re  Grosbois,  109  Cal.  445,  42  Pac.  444. 

Under  this  provision  a  presentment  by  the  grand  jury  for  a 
misdemeanor  is  unauthorized.  (In  re  Grosbois,  109  Cal.  445,  42 
Pac.  444.) 

This  section  does  not  prohibit  a  prosecution  by  indictment  of 
any  criminal  offense,  including  a  misdemeanor.  (Ex  parte 
McCarthy,  53  Cal.  412.) 

A  defendant  cannot  be  put  upon  trial  under  an  information 
until  after  examination  and  commitment  by  a  magistrate.  (Ex 
parte  Nicholas,  91  Cal.  640,  28  Pac.  47.) 

The  constitution  has  left  the  form  of  the  indictment  to  the 
legislature.     (People  v.  Kelly,  6  Cal.  210.) 

The  provision  of  this  section  for  proceeding  in  criminal  cases 
by  information  is  not  in  conflict  with  the  constitution  of  the 
United  States,  as  not  being  "due  process  of  law."  (Kalloch  v. 
Superior  Court,  56  Cal.  229.) 

A  person  indicted  several  times  for  the  same  offense  is  entitled 
to  his  release  on  nominal  bail  on  the  duplicate  indictments. 
(Ex  parte  Ruef,  7  Cal.  App.  750,  96  Pac.  24.) 


15  CONSTITUTION  OF  1879.  Art.  1,  §  8 

Bail  must  not  be  exacted  for  the  purpose  of  punishing  the 
defendant.     (Ex  parte  Euef,  7  Cal.  App.  750,  96  Pac.  24.) 

The  discretion  of  the  trial  court  in  fixing  bail  will  not  be 
interfered  with,  unless  it  clearly  appears  that  the  court  has 
abused  its  discretion,  and  that  the  bail  demanded  is  per  se 
unreasonably  great  and  clearly  disproportionate  to  the  offense 
involved.     (Ex  parte  Euef,  7  Cal.  App.  750,  96  Pac.  24.) 

It  is  within  the  power  of  the  state  to  abolish  the  grand  jury 
and  authorize  the  procedure  to  punish  crimes  by  information. 
(People  V.  Lewis,  9  Cal.  App.  279,  98  Pac.  107S.) 

When  a  defendant  before  the  impaneling  of  a  grand  jury  has 
been  given  an  opportunity  to  examine  the  prospective  grand  jur- 
ors touching  their  qualifications,  the  court  may  refuse  to  permit 
him  to  go  over  the  same  ground  on  a  motion  to  set  aside  the 
indictment.  (Borello  v.  Superior  Court,  8  Cal.  App.  215,  96  Pac. 
404.) 

A  person  who  has  not  been  held  to  answer,  but  who  may  be 
accused  of  a  public  offense  and  who  may  be  indicted  by  the 
grand  jury,  is  not  entitled  to  examine  the  individual  grand 
jurors  before  they  are  impaneled  and  sworn  touching  their  quali- 
fications to  inquire  into  and  act  upon  his  case.  (Borello  v. 
Superior  Court,  8  Cal.  App.  215,  96  Pac.  404.) 

When  an  information  has  been  filed,  prohibition  will  not  lie 
on  the  ground  that  the  defendant  has  not  had  a  preliminary 
examination.  (Western  Meat  Co.  v.  Superior  Court,  9  Cal.  App. 
538,  99  Pac.  976.) 

Upon  the  filing  of  an  information  the  presumption  arises  that 
the  accused  has  been  given  the  preliminary  hearing  by  a  magis- 
trate. (Western  Meat  Co.  v.  Superior  Court,  9  Cal.  App.  538, 
99  Pac.  976.) 

An  information  may  be  filed  by  the  district  attorney,  although 
the  grand  jury  is  in  session.  (People  v.  Lewis,  9  Cal.  App.  279, 
98  Pac.  1078.) 

A  grand  jury  does  not  lack  jurisdiction  to  find  an  indictment 
merely  because  some  of  its  members  are  disqualified.  (Kitts  v. 
Superior  Court,  5  Cal.  App.  462,  90  Pac.  977.) 

A  menil)er  of  the  grand  jury  wlio  lacks  the  qualifications  pro- 
vided by  law,  is  a  de  facto  officer  and  the  acts  of  the  jury  are 
not  invalidated.  (Kitts  v.  Superior  Court,  5  Cal.  App.  462,  90 
Pac.  977.) 


Art.  I,  §  9  CONSTITUTION  OP  1879.  16 

An  indictment  can  be  set  aside  by  reason  of  the  disqualifica- 
tion of  jurors  only  for  the  reasons  specified  by  the  Penal  Code. 
(Kitts  V.  Superior  Court,  5  Cal.  App.  462,  90  Pac.  977.) 

When  a  person  is  indicted  by  a  grand  jury  he  has  no  oppor- 
tunity to  question  the  qualifications  of  the  jurors,  except  by 
motion  to  set  aside  the  indictment.  (Kitts  v.  Superior  Court, 
5  Cal.  App.  462,  90  Pac.  977.) 

Liberty  of  speech  and  freedom  of  the  press— Trials  for 
libel. 

Sec.  9.  Every  citizen  may  freely  speak,  write  and 
publish  his  sentiments  on  all  subjects,  being  responsi- 
ble for  the  abuse  of  that  right;  and  no  law  shall  be 
passed  to  restrain  or  abridge  the  liberty  of  speech  or 
of  the  press.  In  all  criminal  prosecutions  for  libels, 
the  truth  may  be  given  in  evidence  to  the  jury;  and 
if  it  shall  appear  to  the  jury  that  the  matter  charged 
as  libelous  is  true,  and  was  published  with  good 
motives  and  for  justifiable  ends,  the  party  shall  be 
acquitted;  and  the  jury  shall  have  the  right  to  deter- 
mine the  law  and  the  fact.  Indictments  found,  or 
information  laid,  for  publication  in  newspapers  shall 
be  tried  in  the  county  where  such  newspapers  have 
their  publication  office,  or  in  the  county  where  the 
party  alleged  to  be  libeled  resided  at  the  time  of  the 
alleged  publication,  unless  the  place  of  trial  shall  be 
changed  for  good  cause. 

LIBERTY  OF  THE  PRESS.— This  provision  does  not  make  all 
publications  in  a  newspaper  privileged.  (Oilman  v.  McClatchy, 
111  Cal.  606,  44  Pac.  241.) 


IT  CONSTITUTION  OF  1879.  Art.  I,  §  10 

The  liberty  of  the  press  is  not  more  under  the  protection  of 
the  constitution  than  the  liberty  of  speech,  and  the  publishers  of 
a  newspaper  can  defend  an  action  for  libel  only  upon  precisely 
the  same  grounds  upon  which  any  other  individual  could  defend 
an  action  for  slander.  (Edwards  v.  Publishing  Soc,  99  Cal.  431, 
37  Am.  St.  Kep.  70,  34  Pac.  128.) 

A  court  has  power  to  punish  as  a  contempt  a  publication 
charging  a  judge  with  "deliberate  lying  about  the  law,"  etc.,  in 
a  case  before  him.  (Ex  parte  Barry,  85  Cal.  603,  20  Am.  St. 
Kep.  248,  25  Pac.  256.) 

Under  this  section  a  court  has  no  power  to  forbid  the  repre- 
sentation upon  the  theatrical  stage  of  the  facts  of  a  criminal 
case,  pending  the  trial  of  such  case.  (Dailey  v.  Superior  Court, 
112  Cal.  94,  53  Am.  St.  Rep.  100,  44  Pac.  458,  32  L.  R.  A.  273.) 

It  is  proper  for  the  court  to  inform  the  jury  as  to  the  rules 
of  evidence,  and  the  law  applicable  to  the  case,  and  to  tell  them 
that  they  should  go  contrary  to  the  instructions  of  the  court  only 
when  they  have  a  deep  and  confident  conviction  that  the  court 
is  wrong,  and  that  they  are  right.  (People  v.  Seeley,  139  Cal. 
118,  72  Pac.  834.) 

The  last  sentence  of  this  section  applies  to  the  case  of  a  person 
who  causes  a  libel  to  be  published  in  a  newspaper,  as  well  as  to 
a  publication  by  the  publishers  and  proprietors  alone.  (In  re 
Kowalsky,  73  Cal.  120,  14  Pac.  399.) 

"Good  cause,"  within  the  meaning  of  the  last  sentence  of  this 
section,  is  that  set  forth  in  section  1033  of  the  Penal  Code.  The 
provision  is  not  self-executing  and  confers  no  enlarged  discre- 
tion upon  the  court.  (Older  v.  Superior  Court,  157  Cal.  770,  109 
Pac.  478.) 

Popular  assemblies. 

See.  10.  The  people  shall  have  the  right  to  freely 
assemble  together  to  consult  for  the  common  good,  to 
instruct  their  representatives,  and  to  petition  the  legis- 
lature for  redress  of  grievances. 

RIGHT    TO    FREELY    ASSEMBLE.— This   section   does   not 
prevent  the  legislature  from  forbidding  unlawful  assemblies.     As 
Constitution — 2 


Art.  I,  §  11  CONSTITUTION  OF   1879.  18 

to  what  are  such  assemblies,  see  People  v.  Most,  128  N.  Y.  108, 
26  Am.  St.  Rep.  458,  27  N.  E.  970;  Rex  v.  Biit,  5  Car.  &  P.  154; 
Regina  v.  Neale,  9  Car,  &  P.  431;  Beatty  v.  Gillbanks,  9  Q.  B. 
Div.  308. 

Uniformity  of  laws. 

Sec.  11.  All  laws  of  a  general  nature  shall  have  a 
uniform  operation. 

UNIFORMITY  OF  LAWS.— This  provision  does  not  affect 
laws  in  force  at  the  adoption  of  the  constitution;  and,  therefore, 
■while  section  204  of  the  Code  of  Civil  Procedure,  relating  to  the 
impaneling  of  grand  jurors,  might  have  been  void  under  this 
provision,  a  mere  amendment  to  that  section,  making  it  applica- 
ble to  the  present  judicial  system,  does  not  make  it  unconstitu- 
tional.    (People  v.  Durrant,  116  Cal.  179,  48  Pac.  75.) 

General  principles. — The  word  "uniform"  does  not  mean  "uni- 
versal." (People  v.  Twelfth  District  Court,  17  Cal.  547;  Hellman 
V.  Shoulters,  114  Cal.  136,  44  Pac.  915,  45  Pac.  1057;  In  re  Zhiz- 
huzza,  147  Cal.  328,  81  Pac.  955.) 

All  that  is  necessary  to  constitute  uniformity  is  that  the  law 
shall  operate  uniformly  upon  all  persons  in  the  same  category, 
and  upon  rights  and  things  in  the  same  relation.  (People  v. 
Henshaw,  76  Cal.  436,  18  Pac.  413;  People  v.  Twelfth  District 
Court,  17  Cal.  547;  Ex  parte  Halsted,  89  Cal.  471,  26  Pac.  961; 
Wigmore  v.  Buell,  122  Cal.  144,  54  Pac.  600.) 

A  statute  is  uniform  in  its  operation  if  it  applies  alike  to  all 
persons  or  objects  within  a  class  founded  upon  some  natural, 
intrinsic,  or  constitutional  distinction.  (Vail  v.  San  Diego  Co., 
126  Cal.  35,  58  Pac.  392;  Solano  Co.  v.  McCudden,  120  Cal. 
648,  53  Pac.  213;  Cody  v.  Murphey,  89  Cal.  522,  26  Pac.  1081; 
Kahn  v.  Sutro,  114  Cal.  316,  46  Pac.  87,  33  L.  R.  A.  620;  Murphv 
V.  Pacific  Bank,  119  Cal.  334,  51  Pac.  317;  Ruperich  v.  Baehr,  l42 
Cal.  190,  75  Pac.  782.) 

The  meaning  of  this  provision  is  that  the  legislature  shall  not 
grant  to  any  citizen  or  class  of  citizens  privileges  or  immunities 
which  upon  the  same  term  shall  not  equally  belong  to  all  citi- 
zens. (Ex  parte  Smith  &  Keating,  38  Cal.  702;  Miller  v.  Kister, 
68  Cal.  142,  8  Pac.  813;  People  v.  Henshaw,  76  Cal.  436,  18  Pac. 
413;  Brooks  v.  Hyde,  37  Cal.  366.) 


19  CONSTITUTION  OP  1879.  Art.  I,  §  11 

The  operntion  of  a  law  is  none  the  less  uniform  because  it 
operates  differently  upon  different  classes,  provided  there  is  a 
reasonable  basis  for  the  lack  of  uniformity,  and  the  corporation 
license  tax  act  is  not  invalid  because  failure  of  payment  by  a 
California  corporation  results  in  a  forfeiture  of  its  charter,  while 
nonpayment  by  a  foreign  corporation  results  in  a  forfeiture  of 
its  right  to  do  business  within  the  state.  (Kaiser  Land  &  Fruit 
Co.  V.  Curry,  155  Cal.  638,  103  Pae.  341.) 

This  provision  has  no  application  to  municipal  ordinances.  (In 
re  Zhizhuzza,  147  Cal.  328,  81  Pae.  955.) 

Special  laws. — It  is  only  laws  of  a  general  nature  that  are  re- 
quired to  have  a  uniform  operation,  and  this  section  does  not 
forbid  special  laws.  (People  v.  Central  Pjc.  R.  R.  Co.,  43  Cal. 
398;  Brooks  v.  Hyde,  37  Cal.  366;  Addison  v.  Saulnier,  19  Cal.  82; 
People  V.  Twelfth  District  Court,  17  Cal.  547.) 

Particnlar  acts  held  not  to  be  uniform. — In  conformity  with 
these  principles,  the  following  statutes  have  been  held  void  as 
not  uniform  in  their  operation: 

A  provision  of  the  County  Government  Act  that,  in  counties 
of  a  certain  designated  population,  county  licenses  collected  in 
cities  shall  be  paid  into  the  treasuries  of  such  cities  for  street 
improvements  (San  Luis  Obispo  Co.  v.  Graves,  84  Cal.  71,  23  l*ac. 
1032);  an  act  authorizing  a  named  street  railway  company  to 
operate  a  street  railway  on  designated  streets  (Omnibus  R.  R. 
Co.  V.  Baldwin,  57  Cal.  160);  a  provision  of  the  Insolvency  Act, 
giving  a  right  of  appeal  in  cases  of  contempt — a  right  not  given 
in  other  cases  of  contempt  (Ex  parte  Clancy,  90  Cal.  553,  37  Pae. 
411);  a  law  requiring  cities  of  two  designated  classes  to  make 
an  effort  to  agree  with  the  owners  of  land  sought  to  be  con- 
demned, before  instituting  condemi:ation  proceedings  (Pasadena 
V.  Stimson,  91  Cal.  238,  27  Pae.  604);  a  provision  of  the  County 
Government  Act  of  1S83,  that  the  boards  of  supervisors  of  coun- 
ties of  certain  designated  classes  may  allow  county  officers  a 
deputy  whenever  in  the  opinion  of  such  board  the  salaries  of 
such  officers  are  insufficient  (Dougherty  v.  Austin,  94  Cal.  601,  28 
Pae.  834,  20  Pae.  1092,  16  L.  R.  A.  ioi);  the  provision  of  the 
Australian  ballot  law  for  the  voting  of  straight  tickets  by  stamp- 
ing the  ticket  opposite  the  name  of  the  political  party  to  be 
printed  at  the  head  of  the  ticket  (Eaton  v.  Brown,  96  Cal.  371, 
31  Am.  St.  Rep.  225,  31  Pae.  250,  17  L.  R.  A.  697);  an  act  pro- 
viding that  in  cities  having  boards  of  education,  the  city  treas- 


Art.  I,  §  11  CONSTITUTION  OP  1879.  20 

urers  are  to  have  the  custody  of  the  state  and  county  school 
money  appropriated  to  the  city  (Bruch  v.  Colombet,  104  Cal, 
347,  38  Pac.  45);  a  provision  in  the  County  Government  Act  that, 
in  counties  of  one  particular  class  only,  witnesses  in  criminal 
cases  shall  be  paid  the  same  fees  as  jurors,  in  the  discretion  of 
the  judge  (Turner  v.  Siskiyou  Co.,  109  Cal.  332,  42  Pac.  434);  a 
provision  of  the  County  Government  Act  that,  in  all  counties  of 
one  particular  class,  certain  additional  fees  shall  be  collected  for 
filing  the  inventory  in  estates  of  deceased  persons  (Bloss  v 
Lewis,  109  Cal.  493,  41  Pac.  1081);  the  Primary  Election  Law  of 
1895,  being  confined  in  its  operation  to  counties  of  the  first  and 
second  class  (Marsh  v.  Supervisors,  111  Cal.  368,  43  Pac.  975); 
a  law  giving  the  district  attorney  supervisory  control  over  fees 
of  justices  of  the  peace  and  constables  in  criminal  cases  (Dwyer 
V.  Parker,  115  Cal.  544,  47  Pac.  372) ;  an  act  fixing  different  rates 
of  liability  upon  stockholders  in  different  corporations  (French 
V.  Teschemaker,  24  Cal.  518);  the  provision  of  the  County  Gov- 
ernment Act  that  no  supplies,  etc.,  shall  be  purchased  for  the 
county  from  any  person  who  has  not  had  a  business  in  the  county 
for  a  year  prior  to  the  purchase  (Van  Harlingen  v.  Doyle,  134 
Cal.  53,  66  Pac.  44,  54  L.  R.  A.  771);  the  provision  of  section 
1197  of  the  Political  Code  forbidding  the  name  of  a  nominee  to 
be  placed  upon  the  ballot  more  than  once  (Murphy  v.  Curry,  137 
Cal.  479,  70  Pac.  461,  59  L.  R.  A.  97) ;  a  statute  providing  that  all 
county  printing  must  be  let  to  persons  who  have  been  established 
in  business  in  the  county  for  more  than  one  year  (Van  Harlingen 
v.  Doyle,  134  Cal.  53,  66  Pac.  44,  54  L.  R.  A.  771) ;  the  act  ot 
March  21,  1905,  regarding  rates  of  interest  on  chattel  mortgages, 
and  fixing  a  different  penalty  for  its  violation  when  committed 
by  corporations  than  when  committed  by  individuals  (Ex  parte 
Sohncke,  148  Cal.  262,  113  Am.  St.  Rep.  236,  82  Pac.  956,  2  L.  R. 
A.,  N.  S.,  813,  7  Ann.  Cas.  475);  a  law  regulating  the  rate  of 
interest  on  chattel  mortgages  on  certain  classes  of  property  (Ex 
parte  Sohncke,  148  Cal.  262,  113  Am.  St.  Rep.  236,  82  Pac.  956 
2  L.  R.  A.,  N.  S.,  813,  7  Ann.  Cas.  475).  ' 

Particular  acts  held  valid.— On  the  other  hand,  the  following 
acts  have  been  held  not  to  be  obnoxious  to  the  provision  of  this 
section,  and  valid: 

An  act  whose  object  it  is  to  legalize  the  assessment  of  taxes 
in  San  Francisco,  since  it  is  not  a  general,  but  a  special,  law 
(San  Francisco  v.  Spring  Valley  W,  W.,  54  Cal.  571);  an  act 


21  CONSTITUTION  OF  1879.  Art.  I,  §  11 

establishing  different  fee  1)1118  for  separate  counties,  not  being  of 
a  general  nature  (Ryan  v.  Johnson,  5  Cal.  86);  an  act  to  remedy 
the  failure  of  the  tax  collector  to  publish  the  names  of  the 
owners,  etc.,  it  being  not  a  general,  but  a  special,  law  (Moore 
V.  Patch,  12  Cal.  265);  the  provision  of  the  County  Government 
Act  of  1893,  empowering  certain  of  the  county  officers  in  counties 
of  one  class  to  appoint  a  certain  number  of  deputies,  whose 
salaries  are  fixed  by  the  act  and  made  payable  out  of  the  county 
treasury,  although  in  other  counties  the  principal  must  pay  the 
salaries  of  his  deputies  (Tulare  Co.  v.  May,  118  Cal.  303,  50  Pac. 
427,  overruling  Welsh  v.  Bramlet,  98  Cal.  219,  33  Pac.  66,  and 
Walser  v.  Austin,  104  Cal.  128,  37  Pac.  869);  an  act  subjecting 
trespassing  animals  to  attachment  without  the  affidavit  required 
in  other  cases  of  attachment  (Wigmore  v.  Buell,  122  Cal.  144,  54 
Pac.  600);  a  law  providing  that  assessors  in  counties  of  one  par- 
ticular class  shall  pay  all  percentage  for  the  collection  of  poll 
taxes  into  the  county  treasury  (Summerland  v.  Bicknell,  111  Cal. 
567,  44  Pac.  232);  an  act  providing  for  police  courts  in  all  cities 
of  a  designated  population,  and  providing  that  it  shall  go  into 
effect  upon  the  expiration  of  the  term  of  office  of  the  present 
police  judges  of  such  cities  (People  v.  Henshaw,  76  Cal.  436,  18 
Pac.  413) ;  an  act  providing  for  the  commitment  of  minor  crimi- 
nals to  nonseetarian  charitable  corporations  at  the  expense  of 
the  county  (Boys'  and  Girls'  Aid  Society  v.  Reis,  71  Cal.  627,  12 
Pac.  796);  an  ordinance  prohibiting  public  laundries  in  desig- 
nated parts  of  a  city  (In  re  Hang  Kie,  69  Cal.  149,  10  Pac.  327); 
an  ordinance  making  it  unlawful  for  any  person  to  conduct  a 
laundry  within  certain  limits  without  a  certificate  from  the  fire 
wardens  as  to  the  condition  of  the  heating  appliances,  and  for- 
bidding the  operation  of  any  laundry  between  10  P.  M.  and  6 
A.  M.,  or  on  Sunday  (Ex  parte  Moynier,  65  Cal.  33,  2  Pac.  728); 
an  act  making  it  unlawful  to  keep  open  any  place  of  business  on 
Sundays,  except  barber-shops,  bath-houses  and  hairdressing 
saloons  (Ex  parte  Burke,  59  Cal.  6,  43  Am.  Rep.  231);  the  Reve- 
nue Act  of  1853,  since  the  legislature  may  discriminate  in  the 
imposition  of  taxes  on  certain  classes  of  persons,  occupations  or 
species  of  property,  taxing  some  and  exempting  others  (People 
v.  Coleman,  4  Cal.  46,  60  Am.  Dec.  581);  an  act  prohibiting  all 
persons,  except  innkeepers  and  the  like,  from  keeping  open  their 
places  of  business  on  Sundays  for  the  transaction  of  business 
(Ex    parte    Andrews,    18    Cal.    678);   a    statute   establisliing  a 


Art.  I,  §  11  CONSTITUTION  OP  1879.  22 

limitation  upon  actions  for  the  recovery  of  lands  in  San  Fran- 
cisco under  the  Van  Ness  Ordinance  (Brooks  v.  Hyde,  37  Cal. 
36G);  an  ordinance  making  it  unlawful  to  play  upon  any  musical 
instrument  in  any  saloon,  etc.,  after  midnight,  and  for  any 
female  to  be  in  any  saloon,  etc.,  after  midnight  (Ex  parte  Smith 
&  Keating,  38  Cal.  702);  an  act  giving  to  laborers  working  ii^pon 
mines  only  a  lien  for  their  wages  (Quale  v.  Moon,  4  Cal.  478) ; 
a  state  revenue  law  making  different  provisions  in  the  different 
counties  with  regard  to  the  enforcement  of  the  payment  of  de- 
linquent taxes  (People  v.  Central  Pac.  E.  R.  Co.,  43  Cal.  398); 
the  provisions  of  section  1373  of  the  Political  Code,  making  the 
county  in  which  the  indictment  was  found  chargeable  with  the 
support  of  insane  criminals  (Napa  State  Hospital  v.  Yuba 
County,  138  Cal.  378,  71  Pac.  450);  an  act  providing  that  in 
divorce  suits  the  final  decree  shall  not  be  entered  until  the  ex- 
piration of  one  year  from  the  filing  of  the  decision  (Deyoe  v. 
Superior  Court,  140  Cal.  476,  98  Am.  St.  Rep.  73,  74  Pac.  28); 
the  act  regulating  the  practice  of  medicine  and  surgery  (Ex 
parte  Gerino,  143  Cal.  412,  77  Pac.  166,  66  L.  R.  A.  249);  the 
case  of  Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  383,  approved  as  to 
the  constitutionality  of  an  "act  to  encourage  and  provide  for 
general  vaccination  in  the  state  of  California"  (French  v. 
Davidson,  143  Cal.  659,  77  Pac.  663);  an  act  making  it  unlawful 
to  buy  or  sell  quail  (Ex  parte  Kenncke,  136  Cal.  527,  89  Am. 
St.  Rep.  177,  69  Pac.  261);  the  act  providing  for  the  application 
of  the  salaries  of  public  officers  to  the  payment  of  their  debts 
(Ruperich  v.  Baehr,  142  Cal.  190,  75  Pac.  782);  the  act  in  regard 
to  the  practice  of  architecture  (Ex  parte  McManus,  151  Cal. 
33,  90  Pac.  702);  the  provision  of  the  child  labor  law  permitting 
the  employment  of  children  in  certain  cases  where  they  can 
"read  English  at  sight  and  write  simple  English  sentences"  (In 
re  Spencer,  149  Cal.  396,  117  Am.  St.  Rep.  137,  86  Pac.  896); 
section  246  of  the  Penal  Code,  providing  the  death  penalty 
for  any  person  undergoing  a  life  sentence  who  commits  an  as- 
sault with  a  deadly  weapon  (People  v.  Finley,  153  Cal.  59,  94 
Pae.  248;  People  v.  Carson,  155  Cnl.  164,  99  Pac.  970);  the  act  of 
1905,  creating  the  "Sacramento  Drainage  District,"  as  the  sub- 
ject matter  of  the  act  required  a  special  law  (People  v.  Sacra- 
mento Drainage  District,  155  Cal.  373,  103  Pac.  207);  "an  act 
to  prohibit  the  sale  of  intoxicating  liquors  within  a  certain 
distance  of  any  camp  or  assembly  of  men,  numbering  twenty- 


23  CONSTITUTION  OF  1879.   Art.  I,  §§  12, 13 

five  or  more,  engnged  upon  the  construction,  repair  or  operation 
of  any  public  work,  improvement,  or  utility"  (Stats.  1909,  p. 
722)  (Ex  parte  King,  157  Cal.  161,  106  Pac.  578);  "an  act 
to  amend  section  4243  of  the  Political  Code  of  the  state  of 
Calitornia,  relating  to  the  compensation  and  expenses  of  officers 
in  counties  of  the  fourteenth  class"  (Stats.  1900,  p.  322) 
(Crockett  v.  Matthews,  157  Cal.  153,  106  Pac.  575);  an  act  to 
provide  for  laying  out,  opening,  extending,  widening,  etc.,  any 
street,  etc.  (Stats.  1889,  p.  70)  (Clute  v.  Turner,  157  Cal.  73, 
106  Pac.  240);  section  710  of  the  Code  of  Civil  Procedure,  pro- 
viding for  the  garnishment  of  the  salaries  of  certain  public  officers 
at  the  instance  of  their  judgment  creditors  (Lawson  v.  Lawson, 
158  Cal.  446,  111  Pac.  354) ;  a  law  prohibiting  waste  of  water 
from  artesian  wells  (Ex  parte  Elam,  6  Cal.  App.  233,  91  Pac. 
811);  an  ordinance  prohibiting  the  wholesale  liquor  business 
within  a  designated  area  in  a  municipality  (Grumbach  v. 
Lelande,   154  Cal.   679,  98  Pac.   1059). 

As  to  the  uniform  operation  of  the  County  Government  Act, 
which  goes  into  effect  at  different  times  as  to  different  coun- 
ties, see  Freman  v.  Marshall,  137  Cal.  159,  69  Pac.  986. 

Military  power. 

Sec.  12.  The  military  shall  be  subordinate  to  the 
civil  power.  No  standing  army  shall  be  kept  up  by 
this  state  in  time  of  peace,  and  no  soldier  shall,  in  time 
of  peace,  be  quartered  in  any  house  without  the  con- 
sent of  the  owner;  nor  in  time  of  war,  except  in  the 
manner  prescribed  by  law. 

Personal  and  property  rights. 

Sec.  13.  In  criminal  prosecutions,  in  any  court 
whatever,  the  party  accused  shall  have  the  right  to  a 
speedy  and  public  trial;  to  have  the  process  of  the  court 
to   compel  the  attendance   of  witnesses  in  his  behalf, 


Art.  I,  §  13  CONSTITUTION  OF  1879.  24 

and  to  appear  and  defend,  in  person  and  with  counsel. 
No  person  shall  be  twice  put  in  jeopardy  for  the  same 
offense;  nor  be  compelled,  in  any  criminal  case,  to  be  a 
witness  against  himself;  nor  be  deprived  of  life,  liberty, 
or  property  without  due  process  of  law.  The  legis- 
lature shall  have  power  to  provide  for  the  taking,  in 
the  presence  of  the  party  accused  and  his  counsel,  of 
depositions  of  witnesses  in  criminal  cases,  other  than 
cases  of  homicide,  when  there  is  reason  to  believe  that 
the  witness,  from  inability  or  other  cause,  will  not  at- 
tend at  the  trial. 

SPEEDY  TRIAL.— Section  1382  of  the  Penal  Code  is  manda- 
tory, and  the  court  has  no  discretion  to  deny  the  defendant 
a  speedy  trial  as  provided  by  that  section.  (People  v.  Morino, 
85  Cal.  515,  24  Pac.  892.) 

An  accused  person  held  in  custody  an  unreasonable  length 
of  time  without  trial  will  be  discharged  upon  habeas  corpus. 
(In  re  Begerow,  133  Cal.  349,  85  Am.  St.  Rep.  178,  65  Pac.  828, 
56  L.  R.  A.  614;  People  v.  Moran,  144  Cal.  48,  77  Pac.  777.) 

When  good  cause  is  shown  for  the  delay,  a  dismissal  will  not 
be  ordered  when  the  trial  has  been  delayed  more  than  sixty 
days.     (People  v.  Moran,  144  Cal.  48,  77  Pac.  777.) 

Pronouncing  judgment  is  no  part  of  the  trial,  and  the  con- 
stitutional right  to  a  speedy  trial  is  not  violated  by  a  delay  of 
thirty-five  days  in  pronouncing  judgment.  (Peoj^le  v.  Stokes, 
5  Cal.  App.  205,  89  Pac.  997.) 

PUBLIC  TRIAL. — The  word  "public"  is  used  in  this  section 
in  opposition  to  the  word  "secret."  (People  v.  Swaflford,  65 
Cal.  223,  3  Pac.  809.) 

The  trial  should  be  public  in  the  ordinary,  common-sense  ac- 
ceptation of  the  term,  the  doors  should  be  open,  the  public 
admitted  with  due  regard  to  the  size  of  the  courtroom,  the 
conveniences  of  the  court,  the  right  to  exclude  objectionable 
characters  and  youths  of  tender  years,  and  to  do  other  things 


25  CONSTITUTION  OF  1879.  Art.  I,  §  13 

which  may  facilitate  the  proper  conduct  of  the  trial.  (Pcoijle 
V.  Hartman,  103  Cal.  242,  42  Am.  St.  Rep.  108,  37  Pac.  153.) 

An  order  excluding  from  the  courtroom  all  persons  except  the 
officers  of  the  court  and  the  defendant  is  in  violation  of  this 
provision  and  is  presumed  to  be  prejudicial.  (People  v.  Hart- 
man,  103  Cal.  242,  42  Am.  St.  Rep.  108,  37  Pac,  153.  But  see 
People  V.  Swafford,  65  Cal.  223,  3  Pac.  809.) 

Where  a  defendant  during  a  trial  becomes  excited  and  in- 
dulges in  profane  and  abusive  lan^age,  thus  creating  commo- 
tion among  the  spectators  and  interrupting  the  trial,  an  order 
excluding  from  the  courtroom  everyone  except  the  officers  of 
the  court,  reporters  of  the  press,  friends  of  the  defendant,  and 
persons  necessary  for  him  to  have  on  his  trial,  is  proper. 
(People  v.  Kerrigan,  73  Cal.  222,  14  Pac.  849.) 

The  defendant  may  waive  the  right  to  a  public  trial.  (Peo- 
ple V.  Tarbox,  115  Cal.  57,  46  Pac.  896.) 

WITNESSES. — The  legislature  has  power  to  limit  the  com- 
pulsory attendance  of  prisoners  confined  in  the  state  prison  to 
cases  of  necessity,  the  existence  of  which  is  to  be  determined 
by  the  court.  (Willard  v.  Superior  Court,  82  Cal.  456,  22  Pac. 
1120.) 

The  defendant  may  waive  his  right  to  be  confronted  with  the 
witnesses.     (People  v.  Bird,  132  Cal.  261,  64  Pac.  259.) 

A  court  cannot  refuse  to  compel  the  attendance  of  witnesses 
from  an  adjoining  county  merely  because  the  district  attorney 
offers  to  allow  their  testimony  on  a  former  trial  to  be  read. 
(People  v.  Bossert,  14  Cal.  App.  Ill,  111  Pac.  15.) 

A  defendant  is  entitled  to  a  reasonable  time  within  which 
to  procure  the  attendance  of  witnesses.  (People  v.  Bossert, 
14  Cal.  App.  Ill,  111  Pac.  15.) 

It  is  the  duty  of  the  court,  when  due  diligence  has  been  used, 
and  it  appears  that  the  application  is  made  in  good  faith,  and 
the  evidence  is  material,  to  continue  the  case  for  a  reasonable 
time  to  obtain  an  absent  witness.  (People  v.  Fong  Chung,  5 
Cal.  App.  585,  91  Pac.  105.) 

RIGHT  TO  APPEAR  AND  DEFEND.— This  provision  only 
gives  the  defendant  tlio  right  to  appear  and  defend  in  person 
and  with  counsel,  and  does  not  give  him  the  right  to  appear 
by  counsel  when  he  is  himself  absent.  Therefore,  when  a  de- 
fendant in  a  criminal  case  escapes  after  conviction,  and  pending 


Art.  I,  §  13  CONSTITUTION  OP  1879.  26 

an  appeal,  the  appeal  will  not  be  heard  in  his  absence,  but  will 
be  dismissed.  (People  v.  Eedinger,  55  Cal.  290,  36  Am.  Eep. 
32.) 

When  a  person,  with  the  consent  and  acquiescence  of  the  de- 
fendant, appears  as  attorney  for  the  defendant,  }»lthough  another 
attorney  has  theretofore  appeared,  and  there  is  no  formal  sub- 
stitution, the  defendant  cannot  be  heard  to  complain  that  he  has 
been  deprived  of  the  right  to  defendant's  counsel.  (People  v. 
Garnett,  9  Cal.  App.  195,  98  Pac.  247.) 

To  require  a  jirisoner  during  the  progress  of  his  trial  to 
appear  and  remain  with  chains  upon  his  limbs,  without  evident 
necessity  as  a  means  of  securing  his  presence  for  judgment,  is 
in  violation  of  this  section.      (People  v.  Harrington,  42  Cal.  165.) 

A  view  of  the  premises  without  the  presence  of  the  defendant 
is  in  violation  of  this  section.  (People  v.  Bush,  68  Cal.  623, 
10  Pac.  169.) 

JEOPARDY. — When  a  person  is  placed  on  trial  upon  a  valid 
indictment,  before  a  competent  court  and  jury,  he  is  in  jeopardy. 
(People  V.  Cage,  48  Cal.  323, 'l7  Am.  Rep.  436;  Ex  parte  Hart- 
man,  44  Cal.  32;  People  v.  Webb,  38  Cal.  467;  Ex  parte  Fenton, 
77  Cal.  183,  19  Pac.  267;  People  v.  Smalling,  94  Cal.  112,  29 
Pac.  421.) 

After  he  has  thus  been  put  in  jeopardy,  he  cannot  be  again 
tried  for  the  same  offense  unless  the  jury  is  discharged  from 
rendering  a  verdict  by  a  legal  necessity,  or  by  his  consent;  or, 
in  case  a  verdict  is  rendered,  it  be  set  aside  at  his  instance. 
(People  V.  Webb,  38  Cal.  467;  People  v.  Smalling,  94  Cal.  112, 
29  Pac.  421.) 

This  is  true  although  the  judgment  is  arrested  by  the  court 
(Ex  parte  Hartman,  44  Cal.  32);  or  an  acquittal  is  obtained 
by  reason  of  an  erroneous  instruction  (People  v.  Webb,  38  Cal. 
467;  People  v.  Roberts,  114  Cal.  67,  45  Pac.  1016;  People  v. 
Horn,  70  Cal.  17,  11  Pac.  470);  or  the  action  is  dismissed  by 
the  court  on  the  ground  that  he  is,  in  the  opinion  of  the  court, 
guilty  of  a  more  serious  offense  (People  v.  Ny  Sam  Chung,  94 
Cal.  304,  28  Am.  St.  Rep.  129,  29  Pac.  642). 

Where  the  court  is  prohibited  from  pronouncing  judgment 
upon  the  defendant  because  the  indictment  is  invalid,  jeopardy 
does  not  attach.     (People  v.  Terrill,  133  Cal.  120,  65  Pac.  303.) 


27  CONSTITUTION  OF  1879.  Art.  I,  §  13 

To  hold  a  person  guilty  of  the  crime  of  offering  a  bribe,  and 
by  the  same  act  guilty  of  the  crime  of  being  an  accomplice  to 
the  crime  of  receiving  a  bribe,  would  not  be  allowable.  (People 
V.  Bunkers,  2  Cal.  App.  197,  84  Pac.  364,  370.) 

A  dismissal  of  a  charge  on  motion  of  the  district  attorney  ia 
not  a  bar  to  another  prosecution.  (People  v.  Kerrick,  -144  Cal. 
40,  77  Pac.  711.) 

When  a  defendant  is  acquitted  because  of  a  variance  be- 
tween the  proof  and  the  indictment,  and  the  variance  is  such 
that  a  conviction  is  legally  impossible,  he  has  not  been  m 
jeopardy.  (People  v.  McNealy,  17  Cal.  332;  People  v.  Oreileus, 
79  Cal.  178,  21  Pac.  724.)     ' 

A  judement  rendered  upon  a  plea  of  which  the  court  has  no 
jurisdiction  docs  not  place  the  defendant  in  jeopardy  so  far 
as  that  plea  is  concerned.  (People  v.  Woods,  84  Cal.  441,  23 
Pac.  1119;  People  v.  Hamberg,  84  Cal.  468,  24  Pac.  298.) 

Subdivision  6  of  section  1238  of  the  Penal  Code,  allowing  the 
people  to  appeal  from  an  order  of  the  court  directing  the  jury 
to  find  for  the  defendant,  is  void,  since  the  defendant  has  been 
in  jeopardy.     (People  v.  Horn,  70  Cal.  17,  11  Pac.  470.) 

The  fact  that  the  defendant  has  been  held  to  answer  by  a 
justice  of  the  peace  and  discharged  does  not  prevent  him  from 
again  being  held  to  answer.      (Ex  parte  Cahill,  52  Cal.  403.) 

If  a  demurrer  is  sustained  to  tin  information,  without  leave 
to  amend,  it  is  a  bar  to  another  prosecution.  (People  v.  Jordan, 
03  Cal.  219.) 

Where  an  information  is  dismissed  because  it  charges  the 
commission  of  an  offense  subsequent  to  the  date  of  its  tiling, 
a  plea  of  once  in  jeopardy  will  not  prevail.  (People  v.  Larson, 
68  Cal.  18,  8  Pac.  517.) 

A  discharge  upon  preliminary  examination  does  not  place  the 
defendant  in  jeopardy.  (Ex  parte  Fenton,  77  Cal.  183,  19  Pac. 
267.) 

Discharge  of  jury. — If  the  jury  is  discharged  without  the 
consent  of  the  defendant,  except  in  case  of  unavoidable  acci- 
dent or  necessity,  the  defendant  cannot  be  again  prosecuted. 
(People  V.  Cage,  48  Cal.  323,  17  Am.  Rep.  436.) 

Inability  of  the  jury  to  agree  after  a  reasonable  time  for  de- 
liberation is  an  unavoidable  necessity.  (People  v.- Cage,  48  Cal. 
323,  17  Am.  Eep.  436;  People  v.  Smalling,  94  Cal.  112,  29  Pac. 


Art.  I,  §  13  CONSTITUTION  OF  1879.  28 

421;  People  v.  James,  97  Cal.  400,  32  Pac.  317;  People  v.  Dis- 
puati,  11  Cal.  App.  469,  105  Pac.  617.) 

The  fact  of  such  necessity  cannot  be  impeached  by  extrinsic 
evidence,  and  such  discharge  may  be  made  in  the  absence  of 
the  defendant,  if  his  presence  is  waived  by  his  counsel.  (People 
V.  Smalling,  94  Cal.  112,  29  Pac.  421.) 

Even  if  the  court  instructed  the  jury  to  acquit,  a  plea  of  once 
in  jeopardy  will  not  prevail  if  the  jury  is  discharged  for  failure 
to  agree.     (People  v.  James,  97  Cal.  400,  32  Pac.  317.) 

The  court  cannot  discharge  the  jury  merely  upon  a  report  of 
the  sheriff  that  the  jury  cannot  agree.  (People  v.  Cage,  48  Cal. 
323,  17  Am.  Eep.  436.) 

Where  the  jury  is  discharged  for  failure  to  agree,  it  is  not 
necessary  that  J;he  record  should  show  that  it  satisfactorily 
appeared  to  the  judge  that  there  was  no  reasonable  probability 
that  the  jury  could  agree,  (People  v.  Greene,  100  Cal.  140,  34 
Pac.  630.) 

Where  the  defendant  flees  during  the  trial  and  the  jury  is 
discharged,  a  plea  of  once  in  jeopardy  has  no  merit.  (People 
V.  Higgins,  59  Cal.  357.) 

Where  the  jury  is  discharged  with  the  consent  of  the  defend- 
ant, a  plea  of  once  in  jeopardy  will  not  prevail.  (People  v. 
Curtis,  76  Cal.  57,  17  Pac.  941.) 

The  same  is  true  if  the  jury  is  discharged  on  account  of  the 
sickness  of  one  of  the  jurors.  (People  v.  Koss,  85  Cal.  383,  24 
Pac.  789.) 

But  if  a  defendant  is  indicted  for  manslaughter,  the  court 
cannot  lawfully  discharge  the  jury  because  it  is  of  the  opinion 
that  he  is  guilty  of  murder.     (People  v.  Hunckeler,  48  Cal.  331.) 

Nor  can  the  jury  be  lawfully  discharged  because  it  has  found 
a  verdict  convicting  the  defendant  of  a  crime  not  included  in 
the  charge.     (People  v.  Arnett,  129  Cal.  306,  61  Pac.  930.) 

Different  offenses. — Where  the  legislature  has  forbidden  the 
sale  of  opium,  unless  a  record  of  the  sale  is  kept,  and  a  city 
ordinance  forbids  the  sale  without  a  prescription  of  a  physician, 
a  prosecution  under  each  of  these  provisions  is  no  violation  of 
this  provision.      (Ex  parte  Hong  Shen,  98  Cal.  681,  33  Pac.  799.) 

A  prosecution  for  fraudulently  procuring  a  note  of  one  of  the 
joint  makers  is  not  a  bar  to  a  prosecution  for  fraudulently  pro- 


29  CONSTITUTION  OF  1879.  Art.  I,  §  13 

curing  the  joint  note  of  the  two  makers.  (People  v.  Cumminga, 
123  Cal.  269,  55  Pac.  898.) 

An  acquittal  upon  a  charge  of  libel  in  the  publication  of  a 
charge  in  a  newspaper  is  a  bar  to  a  prosecution  for  the  publica- 
tion of  another  charge  in  the  same  issue  and  against  the  same 
individual,  although  the  charges  are  not  the  same.  (People  v. 
Stephens,  79  Cal.  428,  21  Pac.  856,  4  L.  R.  A.  845.) 

A  charge  of  altering  the  brands  of  cattle  is  not  included  in  a 
charge  of  grand  larceny  of  the  same  cattle,  in  which  evidence 
was  given  of  the  same  alteration  of  brands.  (People  v.  Ker- 
rick,  144  Cal.  46,  77  Pac.  711.) 

Lesser  offense. — A  conviction  of  a  lesser  offense  than  that 
charged  is  an  acquittal  of  the  higher.  (People  v.  Apgar,  35 
Cal.  389;  People  v.  Ny  Sam  Chung,  94  Cal.  304,  28  Am.  St.  Eep. 
129,  29  Pac.  642;  People  v.  Gordon,  99  Cal.  227,  33  Pac.  901.) 

Where  a  defendant  is  charged  with  assault  with  a  deadly 
weapon,  and  is  convicted  of  battery,  and  the  judgment  is  re- 
versed, a  plea  of  once  in  jeopardy  will  not  lie,  as  assault  does 
not  include  battery.     (People  v.  Helbing,  61  Cal.  620.) 

A  defendant  tried  for  murder,  and  convicted  of  murder  in  the 
second  degree,  who  has  the  judgment  vacated  and  a  new  trial 
granted,  may  be  subsequently  convicted  of  murder  in  the  first 
degree.     (People  v.  Kecfer,  65  Cal.  232,  3  Pac.  818.) 

A  conviction  of  an  assault,  under  an  information  charging  an 
assault  with  intent  to  murder,  is  a  bar  to  a  prosecution  for 
mayhem  committed  during  the  assault.  (People  v.  Defoor,  100 
Cal.  150,  34  Pac.  642.) 

A  verdict  of  manslaughter  is  the  equivalent  of  a  verdict  of 
not  guilty  of  murder,  and  the  defendant,  after  such  verdict, 
cannot  be  again  tried  upon  the  charge  of  murder.  (People  v. 
Muhlner,  1]5  Cal.  303,  47  Pac.  128.) 

A  conviction  for  petit  larceny  committed  in  connection  with 
a  burglary  is  not  a  bar  to  a  prosecution  for  burglary.  (People 
V.  Devlin,  143  Cal.  128,  76  Pac.  900.) 

New  trials  and  appeals. — Where  a  new  trial  is  ordered  for  in- 
sufticiency  of  the  evidence,  a  plea  of  once  in  jeopardy  has  no 
merit.      (Peoi)le  v.  Hardisson,  61  Cal.  378.) 

Where  a  judgment  of  conviction  is  reversed  because  of  a 
defective  information,  and  the  action  is  dismissed  and  a  new 
information  filed  for   the   same   offense,   the   defendant   cannot 


Art.  I,  §  13  CONSTITUTION  OF  1879.  30 

plead  once  in  jeopardy.  (People  v.  Schmidt,  64  Cal.  2G0,  ^0 
Pac.  814;  People  v.  Eppinger,  109  Cal.  294,  41  Pac.  10.37;  People 
V.  Clark,  67  Cal.  99,  7  Pac.  178;  People  v.  Mooney,  132  Cal.  13, 
63  Pac.  1-070.) 

The  same  is  true  where  the  judgment  is  reversed  because  the 
verdict  fails  to  find  the  degree  of  the  crime.  (People  v. 
Travers,  73  Cal.  580,  15  Pac.  293;  People  v.  Lee  Yuue  Chong, 
94  Cal.  379,  29  Pac.  776.) 

Also  where  the  judgment  is  reversed  for  failure  to  file  the 
information  within  the  time  prescribed  by  the  statute.  (People 
V.  Wickham,  116  Cal.  384,  48  Pac.  329.) 

Also  where  the  judgment  is  reversed  for  failure  to  find  upon 
a  plea  of  once  in  jeopardy.  (People  v.  Tucker,  117  Cal.  229, 
49  Pac.  134.) 

Where  the  defendant  has  not  asked  for  a  new  trial,  the  su- 
preme court  in  reversing  the  judgment  may  nevertheless  grant 
it.  (People  v.  Travers,  77  Cal.  176,  19  Pac.  268;  People  v.  Lee 
Yune  Chong,  94  Cal.  379,  29  Pac.  776.) 

Practice. — The  question  of  jeopardy  can  only  arise  after  an 
issue  has  been  made  of  once  in  jeopardy.  (People  v.  Lee  Yune 
Chong,  94  Cal.  379,  29  Pac.  776.) 

The  defendant  is  entitled  to  a  special  verdict  upon  a  plea  of 
once  in  jeopardy.     (People  v.  Tucker,  115  Cal.  337,  47  Pac.  111.) 

Where  the  jury  on  the  first  trial  found  for  the  people  on  the 
plea  of  once  in  jeopardy,  but  failed  to  agree  as  to  the  plea  of 
not  guilty,  the  former  plea  need  not  be  again  submitted  to  the 
jury  on  a  second  trial.  (People  v.  Smith,  121  Cal.  355,  53  Pac. 
802.) 

WITNESS  AGAINST  SELF. — A  proceeding  to  remove  a  pub- 
lic officer  for  misconduct  in  office,  no  matter  in  what  form  the 
statutes  may  clothe  it,  is  in  its  nature  a  criminal  case.  (Thurs- 
ton V.  Clark,  107  Cal.  2S5,  40  Pac.  435.) 

Sections  1458  to  1461  of  the  Code  of  Civil  Procedure  are  not 
penal  in  their  nature.  (Levy  v.  Superior  Court,  105  Cal.  600, 
38  Pac.  965,  29  L.  R.  A.  811.) 

Where  the  examination  of  the  defendant  is  confined  entirely 
to  the  instrument  which  he  is  charged  with  forging,  he  cannot 
be  cross-examined  in  reference  to  the  forgery  of  another  in- 
strument.    (People  V.  Baird,  104  Cal.  462,  38  Pac.  310.) 


31  CONSTITUTION  OF  1879.  Art.  I,  §  13 

Where  a  defendant  testifies  that  he  drew  the  pistol  merely  to 
scare  the  deceased  and  had  had  no  quarrel  with  him  on  that 
day,  it  is  proper  on  cross-examination  tt)  ask  him  whether  or 
not  he  had  a  quarrel  with  the  deceased  a  few  moments  before 
the  shooting,  and  as  to  what  kind  of  a  pistol  he  had,  and  why 
he  cocked  it.     (People  v.  Brown,  76  Cal.  573,  18  Pac.  678.) 

Where  a  defendant  in  his  cross-examination  voluntarily  makes 
a  statement  concerning  matters  not  embraced  in  his  examina- 
tion in  chief,  he  may  be  cross-examined  for  the  purpose  of 
making  such  statements  more  clear.  (People  v.  Sutton,  73  Cal. 
243,  15  Pac.  86.) 

The  fact  that  the  defendant  has  been  compelled  to  testify 
concerning  the  ofiPense  is  merely  a  defense  to  the  indictment, 
and  does  not  affect  the  jurisdiction  of  the  court.  (Rebstock  v. 
Superior  Court,  146  Cal.  308,  80  Pac.  65.) 

It  is  sufficient,  to  bring  a  person  within  the  immunity  of  this 
provision,  that  there  is  a  law  creating  the  offense  under  which 
the  v/itness  may  be  prosecuted,  and  which  does  not  secure  him 
against  use,  in  a  criminal  prosecution,  of  the  evidence  that  he 
may  give;  and  in  such  ease  he  cannot  be  compelled  to  answer 
in  any  collatsral  proceeding  as  to  acts  constituting  such  offense. 
(Ex  parte  Clarke,  103  Cal.  352,  37  Pac.  230.) 

Where  the  statute  gives  the  witness  complete  immunity  from 
prosecution  for  the  offense  with  reference  to  which  his  testi- 
mony is  given,  he  cannot  refuse  to  answer.  (Ex  parte  Cohen, 
104  Cal.  524,  43  Am.  St.  Rep.  127,  38  Pac.  364,  26  L.  R.  A.  423.) 

A  law  can  absolutely  secure  a  party  against  use  in,  a  criminal 
prosecution  of  the  evidence  he  may  give,  only  by  a  provision 
that,  if  he  submits  to  the  examination  and  answers  the  ques- 
tions, he  shall  be  exempt  from  any  criminal  prosecution  for  the 
offense  to  which  the  inquiry  relates.  (Ex  parte  Clarke,  103  Cal. 
352,  37  Pac.  230.) 

The  mere  fact  that  an  answer  might  disgrace  the  witness  is 
not  ground  for  refusal  to  answer;  and  where  an  act  provides 
that  the  testimony  shall  not  be  used  against  him  in  any  criminal 
I)rosecution,  he  cannot  refuse  to  answer  under  this  provision. 
{Ex  parte  Rowe,  7  Cal.  184.) 

It  is  for  the  court  and  not  for  the  witness  to  determine 
whether  or  not  the  answer  will  incriminate  the  witness.  (In  re 
Rogers,  129  Cal.  468,  62  Pac.  47.) 


Art.  I,  §  13  CONSTITUTION  OF  1879.  32 

A  defendant  in  a  criminal  prosecution,  who  has  become  a 
witness  in  his  own  behalf,  cannot  be  cross-examined  as  to  any 
facts  or  matters  not  testified  to  by  him  on  his  examination  in 
chief.     (People  v.  O'Brien,  66  Cal.  602,  6  Pac.  695.) 

When  a- defendant  offers  himself  as  a  witness  he  is  subject 
to  the  same  rules  of  cross-examination  as  any  other  witness. 
(People  V.  Maughs,  8  Cal.  App.  707,  96  Pac.  407.) 

DUE  PROCESS  OF  LAW — Property. — The  right  to  practice 
law  is  not  "property"  within  the  meaning  of  this  section. 
(Cohen  v.  Wright,  22  Cal.  293.) 

The  right  to  a  salary  attached  to  a  public  office  is  not  prop- 
erty. (Pennie  v.  Reis,  80  Cal.  266,  22  Pac.  176;  Clarke  v.  Eeis, 
87  Cal,  543,  25  Pac.  759.) 

Title  by  prescription  is  property  which  is  protected  by  this 
provision.      (Sharp  v.  Blankenship,  59  Cal.  288.) 

A  vested  right  in  a  pension  fund  is  property  within  the  mean- 
ing of  this  provision.  (Kavanagh  v.  Board  of  Police  P.  F. 
Commrs.,  134  Cal.  50,  66  Pac.  36.) 

What  is  "due  process." — "Due  process  of  law"  means  such  an 
exertion  of  the  powers  of  the  government  as  the  settled  maxims 
of  law  permit  and  sanction,  and  under  such  safeguards  for  the 
protection  of  individual  rights  as  those  maxims  prescribe  for 
the  class  of  cases  to  which  the  one  in  question  belongs.  (Ex 
parte  Ah  Fook,  49  Cal.  402;  Wulzen  v.  Supervisors,  101  Cal. 
15,  40  Am.  St.  Rep.  17,  35  Pac.  353.) 

The  words  "due  process  of  law"  were  intended  to  convey  the 
same  meaning  as  the  words  "the  law  of  the  land"  in  Magna 
Charta,  and  mean  public  laws  binding  all  the  members  of  the 
community  under  similar  circumstances,  and  not  partial  or  pri- 
vate laws  aft'eeting  the  rights  of  individuals.  (Kalloch  v.  Su- 
perior Court,  56  Cal.  229.) 

Due  process  of  law  requires  a  trial  governed  by  the  estab- 
lished rules  of  evidence,  and  a  procedure  suitable  and  proper 
to  the  nature  of  the  case,  and  sanctioned  by  the  established 
usage  and  customs  of  the  courts.  (San  Jose  Ranch  Co.  v.  San 
Jose  etc.  Co.,  126  Cal.  322,  58  Pac.  82-1^) 

Police  power. — In  the  exercise  of  the  police  power  certain 
kinds  of  property,  when  held  or  used  so  as  to  be  injurious  to 
the  general  public,  may  be  seized  and  destroyed.  (Collins  v. 
Lean,  68  Cal.  284,  9  Pac.  173.) 


33  CONSTITUTION  OF  1879.  Art.  I,  §  13 

An  act  dcfiuing  pure  wine,  prohibiting  the  use  of  deleterious 
sulJstitutes,  and  forbidding  the  sale  of  impure  wine,  does  not 
deprive  one  of  property  without  due  process  of  law.  (Ex  parte 
Kohler,  74  Gal.  38,  15  Pac.  436.) 

Where  the  exercise  of  the  police  power  is  permissible,  the  pro- 
vision of  the  constitution  declaring  that  private  property  shall 
not  be  taken  without  due  process  of  law  is  inapplicable.  (Ex 
parte  Elam,  6  Cal.  App.  233,  91  Pac.  811.) 

An  ordinance  prohibiting  the  sale  of  liquors  is  not  unconsti- 
tutional because  it  deprives  one  of  the  right  to  dispose  of  large 
quantities  of  liquor  which  he  had  on  hand  at  the  time  the  ordi- 
nance was  passed.  (Ex  parte  Young,  154  Cal.  317,  97  Pac.  822, 
22  L.  K.  A.,  N.  S.,  330.) 

Where  an  ordinance,  fixing  the  limits  within  which  a  disagree- 
able business  may  be  exercised,  has  in  fact  some  relation  to 
public  health  and  is  appropriate  and  adapted  to  that  end,  it 
cannot  be  urged  that  the  ordinance  deprives  the  owner  of  his 
property  without  due  process  of  law.  (Ex  parte  Laeey,  108 
Cal.  326,  49  Am.  St.  Eep.  93,  41  Pac.  411,  38  L.  E.  A.  640.) 

Particular  statutes. — The  provision  of  the  constitution  allow- 
ing prosecutions  by  information  affords  due  process  of  law. 
(Kalloch  V.  Superior  Court,  56  Cal.  229.) 

The  provision  of  section  971  of  the  Penal  Code  as  to  charging 
an  accessory  before  the  fact  as  a  principal  does  not  deprive 
him  of  life,  liberty  or  property  without  due  i^rocess  of  law. 
(People  V.  Nolan,  144  Cal.  75,  77  Pac.  774.) 

The  expulsion  of  a  member  of  the  legislature  without  a  hear- 
ing does  not  deprive  him  of  property  without  due  process  of 
law.  (French  v.  Senate,  146  Cal.  604,  80  Pac.  1031,  69  L.  E.  A. 
556,  2  Ann.  Cas.  756.) 

The  legislature  has  power  to  provide  that  a  deed  in  a  street 
assessment  matter  shall  be  conclusive  evidence  of  the  regularity 
of  all  required  steps  other  than  those  necessary  to  constitute 
due  process  of  law  or  to  comply  with  the  constitution.  (Chase 
V.  Trout,  146  Cal.  350,  79  Pac.  81.) 

The  statute  prescribing  an  increased  punishment  for  a  second 
olfense  does  not  deprive  a  defendant  of  liberty  without  due 
process  of  law.  (People  y,  Coleman,  145  Cal.  609,  79  Pac.  283.) 
Constitution — 3 


Art.  I,  §  13  CONSTITUTION  OF  1879.  34 

A  law  imposing  the  death  penalty  upon  a  person  undergoing 
a  life  sentence,  who,  with  malice  aforethought,  commits  an  as- 
sault upon  another  with  a  deadly  weapon,  or  by  any  means 
likely  to  produce  bodily  injury,  is  valid.  (In  re  Finley,  1  Cal. 
App.  198,  81  Pac.  1041.) 

An  act  making  the  Issuance  of  bonds  conclusive  evidence  of 
the  validity  of  the  lien  is  void;  but  an  act  making  the  issuance 
conclusive  evidence  of  the  regularity  of  the  proceedings  not 
essential  to  the  jurisdiction  of  the  officers  to  create  the  lien  is 
valid.     (Eamish  v.  Hartwell,  126  Cal.  443,  58  Pac.  920.) 

This  provision  does  not  prohibit  a  summary  proceeding  by  the 
state  to  collect  taxes,  without  the  intervention  of  a  court. 
(High  V.  Shoemaker,  22  Cal.  363.) 

The  act  of  1875,  providing  for  a  judicial  proceeding  to  au- 
thorize the  sale  of  the  homestead  upon  the  insanity  of  either 
spouse,  by  the  sane  spouse  alone,  is  valid,  in  so  far  as  it  relates 
to  a  homestead  upon  the  community  property  acquired  subse- 
quent to  the  passage  of  the  act.  (Rider  v.  Eegan,  114  Cal.  667, 
46  Pac.  820.) 

A  law  authorizing  the  court  to  strike  out  the  pleading  of  a 
defendant  for  failure  to  sign  a  deposition  or  as  a  punishment 
for  a  contempt  of  court  is  invalid.  (Foley  v.  Foley,  120  Cal. 
33,  65  Am.  St.  Eep.  147,  52  Pac.  122.) 

To  enter  judgment  against  a  defendant  for  failure  to  deposit 
his  share  of  the  per  diem  of  the  reporter  is  taking  property 
without  due  process  of  law.  (Meacham  v.  Bear  Valley  Irr.  Co., 
145  Cal.  eae,  79  Pac.  281,  68  L.  R.  A.  600.) 

A  statute  providing  that  no  case  shall  be  reversed  for  error, 
unless  it  appears  that  a  different  result  would  have  been  prob- 
able if  the  error  had  not  occurred,  is  void  as  depriving  parties 
of  due  process  of  law.  (San  Jose  Ranch  Co.  v.  San  Jose  etc. 
Co.,  126  Cal.  322,  58  Pac.  824.) 

An  act  devesting  the  title  of  the  purchaser  of  property  from 
a  mortgagor  by  a  foreclosure  suit  in  which  the  mortgagor  alone 
is  defendant  is  void.      (Skinner  v.  Buck,  29  Cal.  253.) 

An  act  extending  the  corporate  limits  of  a  town  so  as  to  in- 
clude lands  used  solely  for  agricultural  purposes  was  upheld  in 
Santa  Rosa  v.  Coulter,  58  Cal.  537. 

The  act  of  1907,  page  122,  prohibiting  waste  from  artesian 
wells  does  not  unconstitutionally  interfere  with  private  prop- 
erty.    (Ex  parte  Elam,  6  Cal.  App.  233,  91  Pac.  811.) 


35  CONSTITUTION  OP  1879.  Art.  I,  §  13 

The  mechanic's  lien  law  is  not  uBconstitutional  because  it 
takes  property  without  due  process  of  law.  (Stimson  Mill  Co. 
V.  Nolan,  5  Cal.  App.  754,  91  Pac.  262.) 

The  amendments  to  the  Code  of  Civil  Procedure  providing 
for  a  new  and  alternative  method  of  appeal  do  not  violate  the 
"due  process  of  law"  clauses  of  the  state  and  federal  constitu- 
tions in  failing  to  require  service  of  notices  of  appeal  upon  re- 
spondents.    (Estate  of  McPhee,  154  Cal.  385,  97  Pac.  878.) 

The  amendment  to  the  Code  of  Civil  Procedure  relative  to  the 
method  of  preparing  the  record  to  be  used  on  appeal  is  not  un- 
constitutional in  not  providing  for  service  of  the  notice  filed 
with  the  clerk  that  the  appellant  intends  to  appeal  and  requir- 
ing that  a  transcript  be  made  up.  (Estate  of  McPhee,  154  Cal. 
385,  97  Pac.  878.) 

The  legislature  has  power  to  permit  execution  to  issue  on  a 
judgment  after  the  expiration  of  the  five  years'  limitation  in 
effect  when  the  judgment  was  rendered,  provided  the  judg- 
ment had  not  become  barred  at  the  time  of  the  amendment. 
(Weldon  v.  Rogers,  151  Cal.  432,  90  Pac.  1062.) 

The  legislature  may  extend  the  time  within  which  an  action 
may  be  brought  at  any  time  before  the  action  is  barred. 
(Weldon  v.  Rogers,  151   Cal.  432,  90  Pac.   1062.) 

The  legislature  has  power  to  make  a  tax  deed  conclusive 
evidence  that  after  a  sale  to  the  §tate  the  tax  collector  stamped 
all  subsequent  bills  "sold  for  taxes,"  and  the  date  of  the  sale. 
(Bank  of  Lemoore  v.  Fulgham,  151  Cal.  234,  90  Pac.  936.) 

It  is  not  within  the  power  of  the  legislature  to  take  away 
the  right  of  redemption  from  a  tax  sale  which  existed  at  the 
time  of  the  sale.  (Johnson  v.  Taylor,  150  Cal.  201,  119  Am. 
St.  Rep.  181,  88  Pac.  903.) 

Notice. — A  judgment  obtained  without  service  of  summons 
on,  or  voluntary  appearance  by,  the  defendant  does  not  consti- 
tute due  process  of  law.  (Baker  v.  O'Riordan,  65  Cal.  368,  4 
Pac.  232;  Belcher  v.  Chambers,  53  Cal.  635;  De  La  Montanya 
V.  De  La  Montanya,  112  Cal.  101,  53  Am.  St.  Rep.  165,  44  Pac. 
345,  32  L.  R.  A.  82.) 

A  law  authorizing  the  commitment  of  a  person  to  an  insan© 
asylum  without  notice  is  void.  (Matter  of  Lambert,  134  Cal. 
626,  86  Am.  St.  Rep.  296,  66  Pac.  851,  55  L.  R.  A.  856.) 

The  shortness  of  the  period  of  constructive  notice  to  non- 
resident heirs  of  the  probate  of  a  will  does  not  deprive  them 


Art.  I,  §  13  CONSTITUTION  OF  1879.  36 

of  due  process  of  law,  since  they  are  allowed  to  contest  the 
will  within  a  year  after  probate.  (Estate  of  Davis,  136  Cal. 
590,  69  Pac.  412.) 

An  ex  parte  order  for  alimony  is  void.  (Baker  v.  Baker, 
136  Cal.  302,  68  Pac.  971.) 

The  fact  that  the  street  bond  act  does  not  in  terms  give  a 
lienholder  an  opportunity  to  object  does  not  render  it  uncon- 
stitutional. (German  Sav.  etc.  Soc.  v.  Eamish,  138  Cal.  120, 
69  Pac.  89,  70  Pac.  1067.) 

An  act  authorizing  a  personal  judgment  against  a  defendant 
concealing  himself  within  the  state,  for  whom  the  court  has 
appointed  an  attorney  with  privilege  to  the  defendant  to  come 
in  within  six  months,  is  valid.     (Ware  v.  Eobinson,  9  Cal.  107.) 

'Sections  1206  and  1207  of  the  Penal  Code  must  be  construed 
as  requiring  that  both  debtor  and  creditor  are  to  have  notice 
of  claims  for  wages,  otherwise  they  would  deprive  the  debtor 
of  his  property  without  due  process  of  law.  (Taylor  v.  Hill, 
115  Cal.  143,  44  Pac.  336,  46  Pac.  922.) 

Whether  a  notice  of  not  more  than  ten  days  is  valid,  query? 
(Boorman  v.  Santa  Barbara,  65  Cal.  313,  4  Pac.  31.) 

A  general  notice  of  an  intended  improvement,  before  it  has 
been  determined  either  finally  or  conditionally  what  land  will 
be  affected  does  not  constitute  due  process  of  law.  (Boorman 
V.  Santa  Barbara,  65  Cal.  313,  4  Pac.  31.) 

An  act  authorizing  an  assessment  for  street  improvements 
without  notice  to  the  parties  to  be  assessed  is  void.  (Boor- 
man V.  Santa  Barbara,  65  Cal.  313,  4  Pac.  31.) 

Notice  'by  posting  constitutes  due  process  of  law.  (Davies 
V.  Los  Angeles,  86  Cal.  37,  24  Pac.  771.) 

Section  720  of  "the  Code  of  Civil  Procedure,  allowing  the 
judgment  creditor  to  institute  an  action  against  an  alleged 
debtor  of  the  judgment  debtor,  is  not  unconstitutional  on  the 
ground  that  no  notice  is  given  to  the  judgment  debtor.  (High 
v.  Bank  of  Commerce,  95  Cal.  386,  29  Am.  St.  Rep.  121,  30  Pac. 
556.) 

In  matters  of  taxation  and  assessment,  the  state  is  not  bound 
to  accord  personal  service  of  process  upon  the  citizen.  (Wul- 
zen  v.  Supervisors,  101  Cal.  15,  40  Am.  St.  Rep.  17,  35  Pac. 
353.) 

An  assessment  without  giving  an  opportunity  to  the  tax- 
payer to  show  that  the  assessment  is  not  proportionate  to  the 


37  CONSTITUTION  OF  1879.  Art.  I,  §  13 

benefits  is  unconstitutional.  (Lower  Kings  River  Rec.  Dist. 
No.  531  V.  Phillips,  108  Cal.  306,  39  Pae.  630.  41  Pac.  335.) 

In  a  proceeding  for  the  sale  of  the  homestead  of  an  insane 
person,  publication  for  three  weeks  in  a  newspaper,  and  per- 
sonal service  upon  the  nearest  male  relative  of  the  insane 
spouse  to  be  found  in  the  state,  or,  if  none,  then  upon  the 
public  administrator,  whose  duty  it  is  to  appear  for  such  insane 
spouse,  constitutes  due  process  of  law.  (Rider  v.  Regan,  114 
Cal.  667,  46  Pac.  820.) 

Heirs  and  devisees  are  not  deprived  of  their  property  with- 
out due  process  of  law  by  an  order  setting  aside  a  homestead 
in  probate  without  notice  to  them.  (Otto  v.  Long,  144  Cal. 
144,  77  Pac.  885.) 

A  statute  allowing  an  execution  to  issue  against  the  "joint 
property"  of  persons  sued,  when  only  one  of  the  defendants 
lias  been  served,  is  unconstitutional.  (Tay  v.  Hawley,  39  Cal. 
93.) 

An  act  allowing  a  peace  officer  to  seize  all  nets,  etc.,  used 
in  catching  fish  in  violation  of  the  game  laws,  and  to  destroy 
them  without  notice,  or  to  sell  them  upon  notice  posted  any- 
where in  the  county  for  five  days,  is  in  violation  of  this  provi- 
sion. (Hey  Sing  leck  v.  Anderson,  57  Cal.  251,  40  Am.  Rep. 
115.) 

To  take  property  from  the  possession  of  a  person  without  a 
hearing,  and  compel  him  to  prove  title  to  regain  it,  is  taking 
property  without  due  process  of  law.  (Havemeyer  v.  Superior 
Court,  84  Cal.  327,  18  Am.  St.  Rep.  192,  24  Pac.  121,  10  L.  R. 
A.  627.) 

A  forfeiture  of  the  charter  and  property  of  a  subordinate 
grove  by  the  grand  grove,  without  sufficient  charges  to  show 
jurisdiction  over  the  subject  matter,  and  without  sufficient 
notice,  is  in  violation  of  this  provision.  (Grand  Grove  etc.  v. 
Garibaldi  Grove,  130  Cal.  116,  80  Am.  St.  Rep.  80,  62  Pac.  486.) 

An  order  of  the  probate  court  made  without  notice,  compel- 
ling an  attorney  of  an  executrix  to  repay  a  fee  paid  to  him  by 
her,  is  in  violation  of  this  provision.  (Tomsky  v.  Superior 
Court,  131  Cal.  620,  63  Pac.  1020.) 

Due  process  of  law  does  not  require  that  the  defendant  should 
have  notice  of  a  motion  for  the  issuance  of  execution.  (Har- 
rier V.  Bassford,  145  Cal.  529,  78  Pac.  1038.) 


Art.  I,  §  13  CONSTITUTION  OF  1879.  38 

The  inheritance  tax  act  does  not  deprive  the  heir  of  his  prop- 
erty without  due  process  of  law,  since  he  is  given  an  oppor- 
tunity to  be  heard.  (Trippet  v.  State,  149  Cal.  521,  86  Pac. 
1084,  8  L.  K.  A.,  N.  S.,  1210.) 

An  act  providing  that  when  a  foreign  corporation  doing  busi- 
ness in  this  state  fails  to  appoint  an  agent  upon  whom  process 
may  be  served  process  may  be  served  on  the  secretary  of  state 
is  valid.  (Olender  v.  Crystalline  M.  Co.,  149  Cal.  482,  86  Pac. 
1082.) 

A  statute  allowing  the  filing  of  a  memorandum  of  costs  on 
appeal  without  opportunity  to  the  adverse  party  to  have  the 
same  taxed  would  be  unconstitutional.     (Bell  v.  Superior  Court, 

150  Cal.  31,  87  Pac.  1031.) 

The  act  for  the  establishment  of  titles  in  San  Francisco  in 
cases  where  the  records  were  destroyed  by  fire  does  not  deprive 
anyone  of  property  without  due  process  of  law.  (Title  etc. 
Restoration  Co.  v.  Kerrigan,  150  Cal.  289,  119  Am.  St.  Eep.  199, 
88  Pac.  356.) 

The  legislature  may  prescribe  moral  and  unprecedented 
methods  of  procedure,  provided  they  afford  the  parties  affected 
substantial  securities  against  arbitrary  and  unjust  spoliation. 
(Title  etc.  Restoration  Co.  v.  Kerrigan,  150  Cal.  289,  119  Am. 
St.  Rep.  199,  88  Pac.  356.) 

The  provisions  of  the  Code  of  Civil  Procedure  providing  for 
the  dissolution  of  corporations  without  personal  notice  to  cred- 
itors is  not  invalid.  (Crossman  v.  Vivienda  Water  Co.,  150 
Cal.  575,  89  Pac.  335.) 

The  "Torrens  Law"  does  not  deprive  unknown  owners  of 
property  without  due  process  of  law.     (Robinson  v.  Kerrigan, 

151  Cal.  40,  121  Am.  St.  Rep.  90,  90  Pac.  129,  12  Ann.  Cas.  829.) 
The  provisions  for  the  probate  of  wills  is  not  unconstitutional 

because  the  notice  of  ten  days  is  insufficient  to  reach  nonresi- 
dent heirs,  since  they  are  allowed  one  year  after  probate  within 
which  to  contest  the  probate.  (Tracy  v.  Muir,  151  Cal.  363, 
121  Am.  St.  Rep.  117,  90  Pac.  832.) 

The  probate  act  does  not  deprive  the  nonresident  of  his  prop- 
erty without  due  process  of  law  because  it  provides  a  different 
notice  to  residents  than  to  nonresidents.  (Tracy  v.  Muir,  151 
Cal.  363,  121  Am.  St.  Rep.  117,  90  Pac.  832.) 

The  legislature  is,  primarily,  the  judge  of  the  necessity  which 
will  warrant   a   substituted   instead    of   a   personal    service    of 


39  CONSTITUTION  OF  1879.  Art.  I,  §  13 

process.  (Hoffman  v.  Superior  Court,  151  Cal.  386,  90  Pac. 
939.) 

The  "McEnerney  Act,"  for  the  establishment  of  titles  where 
the  records  have  been  destroyed,  is  not  unconstitutional  because 
it  does  not  require  the  plaintiff  to  show  the  efforts  made  by  him 
to  discover  possible  claimants  to  the  property.  (Hoffman  v. 
Superior  Court,  151  Cal.  386,  90  Pac.  939.) 

Section  1582  of  the  Code  of  Civil  Procedure,  authorizing  an 
action  to  foreclose  a  mortgage  against  the  estate  of  a  deceased 
person  to  be  brought  against  the  personal  representative  alone, 
is  not  unconstitutional  in  depriving  the  heirs  of  property  with- 
out due  process  of  law.  (McCaughey  v.  Lyall,  152  Cal.  615, 
93  Pac.  681.) 

Liens. — The  mechanics'  lien  law  of  1868  is  not  unconstitu- 
tional on  the  ground  that  it  attempts  to  appoint  agents  for 
private  persons;  nor  that  it  confiscates  property;  nor  as  to  the 
notice  required  of  owners  as  to  responsibility  for  improvements; 
nor  that  it  attempts  to  take  away  vested  rights,  or  to  clothe 
private  persons  with  power  to  devest  citizens  of  their  property. 
(Hicks  v.  Murray,  43  Cal.  515.) 

Giving  a  laborer  a  lien  upon  a  threshing  machine  in  the  law- 
ful possession  of  a  person  holding  under  the  owner  does  not 
deprive  the  latter  of  property  without  due  process  of  law. 
(Lambert  v.  Davis,  116  Cal.  292,  48  Pac.  123.) 

An  act  authorizing  the  creation  of  a  lien  upon  land  by  virtue 
of  a  contract  for  the  improvement  of  the  street  adjacent 
thereto,  entered  into  with  one  who  is  only  the  reputed  owner 
of  the  land,  is  void.  (Santa  Cruz  Rock  etc.  Co.  v.  Lyons,  117 
Cal.  212,  59  Am.  St.  Rep.  174,  48  Pac.  1097.) 

Curative  acts. — The  legislature  has  power  to  pass  curative 
acts  by  which  the  various  acts  and  proceedings  of  the  oflScera 
and  boards  charged  with  the  levying  and  assessing  of  taxes  are 
rendered  valid,  notwithstanding  that  errors  and  irregularities 
have  intervened.  But  where  the  officer  or  tribunal  has  no  juris- 
diction, the  act  is  void,  and  cannot  be  cured.  (People  v.  Gold- 
tree,  44  Cal.  323.) 

An  act  to  validate  a  judgment  of  a  court  void  for  want  of 
jurisdiction  is  void.  (Pryor  v.  Downey,  50  Cal.  388,  19  Am. 
Rep.  656.) 

An  act  attempting  to  validate  a  void  assessment  is  in  viola- 
tion of  this  provision.     (Brady  v.  King,  53  Cal.  44;  People  v. 


Art.  I,  §  13  CONSTITUTION  OF  1879.  40 

Lynch,  51  Cal.  15,  21  Am.  Rep.  677;  People  v.  Goldtree,  44  Cal. 
323;  Schumaker  v.  Tobernian,  56  Cal.  508;  Taylor  v.  Palmer,  31 
Cal.  240;  People  v.  McCune,  57  Cal.  153.) 

An  act  attempting  to  legalize  a  sale  of  property  for  a  void 
tax  is  unconstitutional.  (Harper  v.  Rowe,  53  Cal.  233;  Wills 
V.  Austin,  53  Cal.  152;   Houghton  v.  Austin,  47  Cal.  646.) 

An  act  curing  tax  deeds  not  containing  a  recital  of  the  time 
allowed  for  redemption  is  valid.  (Baird  v.  Monroe,  150  Cal. 
560,  89  Pac.  352.) 

The  legislature  may  validate  past  transactions  wherein  no 
vested  rights  are  affected.  (Eedlands  v.  Brook,  151  Cal.  474,  91 
Pac.  150.) 

Assessments.— The  so-called  "front-foot"  method  of  assess- 
ment for  street  improvements  has  been  many  times  upheld  in 
this  state.  (Hadley  v.  Dague,  130  Cal.  207,  62  Pac.  500;  Cohen 
V.  Alameda,  124  Cal.  504,  57  Pac.  377;  Chambers  v.  Satterlee, 
40  Cal.  497;  Emery  v.  San  Francisco  etc.  Co.,  28  Cal.  345; 
Emery  v.  Bradford,  29  Cal.  75;  Taylor  v.  Palmer,  31  Cal.  240; 
Whiting  v.  Quackenbush,  54  Cal.  306;  Whiting  v.  Townsend,  57 
Cal.  515;  Lent  v.  Tillson,  72  Cal.  404,  14  Pac.  71;  Jennings  v. 
Le  Breton,  80  Cal.  8,  21  Pac.  1127;  San  Francisco  etc.  Co.  v. 
Bates,  134  Cal.  39,  66  Pac.  2;  Banaz  v.  Smith,  133  Cal.  102,  65 
Pac.  309;  San  Francisco  Pav.  Co.  v.  Bates,  34  Cal.  39,  66  Pac. 
2;  Chapman  v.  Ames,  135  Cal.  246,  67  Pac.  1125;  Belser  v.  All- 
man,  134  Cal.  399,  66  Pac.  492;  Eeid  v.  Clay,  134  Cal.  207,  66 
Pac.  262;  Alameda  v.  Cohen,  133  Cal.  5,  65  Pac.  127;  German 
Sav.  etc.  Soc.  v.  Ramish,  138  Cal.  120,  69  Pac.  89,  70  Pac.  1067.) 

Considerable  doubt  was  cast  upon  the  correctness  of  these 
decisions  by  the  decision  of  the  United  States  supreme  court 
in  Norwood  v.  Baker,  172  U.  S.  269,  19  Sup.  Ct.  187,  43  L.  Ed. 
443;  but  the  doctrine  of  these  cases  has  been  since  sustained 
by  the  decision  of  that  court  in  Tonawanda  v.  Lyon,  181  U.  S. 
389,  21  Sup.  Ct.  609,  45  L.  Ed.  908. 

An  act  authorizing  the  street  superintendent  to  assess  benefits, 
without  prescribing  the  precise  mode  of  assessment,  is  valid. 
(Harney  v.  Benson,  113  Cal.  314,  45  Pac.  687;  Greenwood  v. 
Morrison,  128  Cal.  350,  60  Pac.  971.) 

An  assessment  is  not  invalid  because  the  owner  of  the  land 
is  not  given  an  opportunity  to  be  heard  before  the  assessment 
is  made,  if  he  is  given  that  opportunity  in  an  action  to  enforce 


41  CONSTITUTION  OF  1879.  Art.  I,  §  13 

the  assessment.  (Eeclamation  Dist.  No.  lOS  v.  Evans,  61  Cal. 
104.) 

An  act  permitting  the  owners  of  one-half  of  the  land  of  a 
district  to  form  an  assessment  district,  without  making  any  pro- 
vision for  a  determination  as  to  whether  the  other  owners  will 
be  benefited  by  the  improvement,  is  unconstitutional.  (Moulton 
V.  Parks,  64  Cal.  166,  30  Pac.  613;  Brandenstein  v.  Hoke,  101 
Oal.  131,  35  Pac.  562;  People  v.  Eeclamation  Dist.  No.  551,  117 
Cal.  114,  48  Pac.  1016.) 

The  mode  of  assessment  is  a  matter  for  the  legislature,  and 
the  courts  will  not  interfere  on  the  ground  of  an  improper  ap- 
portionment or  inequality  of  burden  or  benefit,  unless  there  is 
a  palpable  violation  of  private  rights.  (Reclamation  Dist.  v. 
Hagar,  66  Cal.  54,  4  Pac.  945.) 

It  is  sufficient  if  the  parties  interested  are  given  an  oppor- 
tunity to  be  heard  before  the  lien  becomes  final  upon  their 
property,  and  they  are  not  entitled  to  be  heard  upon  the  ques- 
tion whether  or  not  the  improvement  should  be  made.  (Lent 
v.  Tillson,  72  Cal.  404,  14  Pac.  71;  Board  of  Directors  v.  Tregea, 
88  Cal.  334,  26  Pac.  237.) 

Where  the  limits  of  an  assessment  district  are  defined  in  the 
statute,  notice  need  not  be  addressed  to  the  persons  affected  by 
name.     (Lent  v.  Tillson,  72  Cal.  404,  14  Pac.  71.) 

An  act  for  the  protection  of  swamp  lands,  which  provides  for 
making  assessments  therefor  a  charge  upon  the  lands  benefited, 
and  for  a  sale  of  such  lands  for  such  assessments,  without  any 
opportunity  for  a  hearing  of  the  land  owner  in  regard  to  the 
assessment,  and  without  any  suit  or  opportunity  of  defense,  is 
invalid.  (Hutson  v.  Protection  Dist.,  79  Cal.  90,  16  Pac.  549, 
21  Pac.  435.) 

The  property  of  a  land  owner  within  an  irrigation  district  is 
not  taken  from  him  without  due  process  of  law,  if  he  is  allowed 
a  hearing  at  any  time  before  the  lien  of  an  assessment  for  taxes 
levied  thereon  becomes  final.  (In  re  Madera  Irr.  Dist.,  92  Cal. 
296,  27  Am.  St.  Rep.  106,  28  Pac.  272,  675,  14  L.  R.  A.  755.) 

When  the  legal  title  of  the  property  of  irrigation  districts  is 
vested  in  the  district  only  in  trust  for  the  land  owners,  the 
rights  of  such  land  owners  arc  private  property  which  cannot 
be  taken  without  due  process  of  law.  (Merchants'  Bank  v. 
Escondido  Irr.  Dist.,  144  Cal.  329,  77  Pac.  937.) 


Art.  I,  §  14  CONSTITUTION  OF  1879.  42 

The  "Wright  Act"  providing  for  irrigation  districts  is  consti- 
tutional, (in  re  Central  Irr.  Dist.,  117  Cal.  382,  49  Pac.  354, 
and  cases  there  cited.) 

DEPOSITIONS. — This  section  does  not  prevent  the  legislature 
from  providing  that  depositions  taken  on  the  preliminary  exam- 
ination may  be  used  on,  the  trial.  (People  v.  Oiler,  66  Cal.  101, 
4  Pac.  1066.) 

As  to  the  power  of  the  legislature  to  authorize  the  conditional 
examination  of  witnesses,  see  Willard  v.  Superior  Court,  82  Cal. 
456,  22  Pac.  1120. 

The  provision  of  the  Penal  Code  allowing  depositions  taken 
at  the  preliminary  examination  of  a  defendant  charged  with 
murder  to  be  read  in  evidence  for  the  prosecution  upcn  the 
trial  is  not  in  conflict  with  this  section.  (People  v.  Sierp,  116 
Cal.  249,  48  Pac.  88;  People  v.  Cady,  117  Cal.  10,  48  Pac.  908; 
People  V.  Clark,  151  Cal.  200,  90  Pac.  549.) 

Eminent  domain. 

Sec.  14.  Private  property  sliall  not  be  talven  or  dam- 
aged for  public  nse  without  just  compensation  having 
first  been  made  to,  or  paid  into  court  for,  the  owner, 
and  no  right  of  way  shall  be  appropriated  to  the  use  of 
any  corporation  other  than  municipal  until  full  compen- 
sation therefor  be  first  made  in  money  or  ascertained 
and  paid  into  court  for  the  owner,  irrespective  of  any 
benefits  from  any  improvement  proposed  by  such  cor- 
poration, which  compensation  shall  be  ascertained  by  a 
jury,  unless  a  jury  be  waived,  as  in  other  civil  cases  in 
a  court  of  record,  as  shall  be  prescribed  by  law.  The 
taking  of  private  property  for  a  railroad  run  by  steam 
or  electric  power  for  logging  or  lumbering  purposes 
shall  be  deemed  a  taking  for  a  public  use,  and  any  per- 
son, firm,  company  or  corporation  taking  private  prop- 


43  CONSTITUTION  OF  1879.  Art.  I,  §14 

erty  under  the  law  of  eminent  domain  for  such  pur- 
poses shall  thereupon  and  thereby  become  a  common 
carrier.     (Amendment  approved  October  10,   1911.) 

[ORIGINAL  SECTION.] 
Sec.  14.  Private  property  shall  not  be  taken  or  damaged  for 
public  use  without  just  compensation  having  been  first  made 
to,  or  paid  into  court,  for  the  owner,  and  no  right  of  way 
shall  be  appropriated  to  the  use  of  any  corporation  other  than 
municipal  until  full  compensation  therefor  be  first  made  in 
money  or  ascertained  and  paid  into  court  for  the  owner,  irre- 
spective of  any  benefit  from  any  improvement  proposed  by  such 
corporation,  which  compensation  shall  be  ascertained  by  a  jury, 
unless  a  jury  be  waived,  as  in  other  civil  cases  in  a  court  of 
record,  as  shall  be  prescribed  by  law. 

PRIVATE  PROPERTY  FOR  PUBLIC  USE.— A  municipal  cor- 
poration has  no  power  to  take  a  lot  to  which  it  has  no  title, 
which  is  in  the  actual  possession  of  another,  who  claims  to  be 
the  owner,  altliough  he  in  fact  is  not,  and  appropriate  it  to  the 
use  of  the  public,  without  paying  compensation.  (Gunter  v. 
Geary,  1   Cal.  462.) 

The  property  of  a  citizen  cannot  be  taken  from  him  for  public 
use,  unless  ample  means  of  remuneration  are  provided.  (Mc- 
Cann  v.  Sierra  County,  7  Cal.  121.) 

The  only  constitutional  limitation  to  the  taking  of  private 
property  for  j)ublic  use  is  that  compensation  shall  first  be  made. 
(Hercules  Water  Co.  v.  Fernandez,  5  Cal.  App.  726,  91  Pac.  401.) 

A  municipal  corporation  cannot  take  private  property  for 
public  use,  without  making  compensation  in  advance  or  provid- 
ing a  fund  out  of  which  compensation  shall  be  made  as  soon  as 
the  amount  to  be  i)aid  can  be  determined.  (Colton  v.  llosai,  9 
Cal.  595.) 

The  legislature  has  no  power  to  take  the  property  of  one 
person  and  give  it  to  another;  nor  can  it  be  taken  for  public 
use,  unless  compensation  to  the  owner  precede  or  accompany 
the  taking.     (Gillan  v.  Hutchinson,  16  Cal.  153.) 


Art.  I,  §  14  CONSTITUTION  OF  1879.  44 

An  act  directing  the  governor  to  take  possession  of  the  state 
prison  in  the  possession  of  a  lessee,  without  making  any  pro- 
vision for  compensation,  is  void.  (McCauley  v.  Weller,  12  Cal. 
500.) 

The  act  of  1863,  providing  for  the  widening  of  streets  in  San 
Francisco  by  agreement  with  the  owners,  does  not  deprive  the 
owners  of  any  right  or  privilege  guaranteed  by  this  section. 
(San  Francisco  v.  Kiernan,  98  Cal.  614,  33  Pac.  720.) 

Property. — The  right  of  a  riparian  owner  cannot  be  taken 
away,  except  for  public  use  on  due  compensation.  (Lux  v. 
Haggin,  69  Cal.  255,  372,  10  Pac.  674.) 

This  section  does  not  apply  to  any  mere  diminution  in  value 
of  abutting  lands  by  the  closing  of  a  street  in  whole  or  in  part, 
nor  to  any  mere  inconvenience  to  abutting  owners  thereby  occa- 
sioned, if  access  to  their  land  is  not  prevented.  (Brown  v. 
Supervisors,  124  Cal.  274,  57  Pac.  82.) 

Although  the  supervisors  have  authority  to  close  a  public 
street,  the  owner  of  adjoining  property  has  an  easement  therein, 
of  which  he  cannot  be  deprived  witliout  compensation.  (Bige- 
low  V.  Ballerino,  111  Cal.  559,  44  Pac.  307.) 

The  right  of  the  owner  of  a  city  lot  to  the  use  of  the  street 
adjacent  thereto  is  property,  and  any  act  by  which  this  right 
is  impaired  is  to  that  extent  a  damage.  (Eachus  v.  Los  An- 
geles etc.  By.  Co.,  103  Cal.  614,  42  Am.  St.  Kep.  149,  37  Pac. 
750.) 

The  right  of  the  owner  of  land  abutting  on  a  city  street  to 
access  over  it  to  and  from  his  premises  is  a  right  of  property 
of  which  he  cannot  be  deprived  without  compensation.  (Coats 
V.  Atchison  etc.  Ey.  Co.,  1  Cal.  App.  441,  82  Pac.  640.) 

No  compensation  need  be  made  for  the  vacation  of  a  public 
street  which  has  not  been  dedicated  by  the  owners  of  the  land. 
(Levee  Dist.  No.  9  v.  Farmer,  101  Cal.  178;  35  Pac.  569,  23 
L.  E.  A.  388.) 

Section  17  of  article  12  of  the  constitution,  permitting  one 
railroad  to  cross  the  tracks  of  another,  is  subject  to  the  pro- 
vision of  this  section  that  compensation  must  first  be  made. 
(Boca  etc.  E.  E.  v.  Sierra  Yalleys  E.  E.,  2  Cal.  App.  546,  84 
Pac.  298.) 

Property  appropriated  to  public  use  is  private  property. 
(Boca  etc.  E.  E.  v.  Sierra  Valleys  E.  E.,  2  Cal.  App.  546.) 


45  CONSTITUTION  OP  1879,  Art.  I,  §14 

Money  is  not  that  species  of  property  wliich  the  sovereign 
authority  can  authorize  to  be  taken  in  the  exercise  of  the  right 
of  eminent  domain.  (Burnett  v.  Sacramento,  12  Cal.  76;  Emery 
V.  San  Francisco,  28  Cal.  .345.) 

The  leasehold  interest  in  convicts  leased  by  the  state  is  as 
much  property  as  are  lands  held  in  fee.  (MeCauley  v.  Brooks, 
16  Cal.  11.) 

A  franchise  for  a  street  railroad  is  property  capable  of  being 
benefited  by  the  widening  of  the  street.  (Appeal  of  North 
Beach  etc.  E.  R.  Co.,  32  Cal.  499.) 

The  legislature  may  grant  the  right  to  construct  a  railroad 
upon  a  public  street  without  providing  for  compensation  for 
the  damage  done  to  the  owners  of  the  adjacent  property,  pro- 
vided the  owners  of  the  property  are  not  the  owners  usque  ad 
filum  viae.      (Carson  v.  Central  Pac.  R.  R.  Co.,  35  Cal.  325.) 

A  person  who  owns  lots  fronting  on  a  street  dedicated  by 
himself  to  the  public  use  is  entitled  to  damages  if  a  railroad 
company  lays  its  track  along  the  street,  and  thereby  obstructs 
it  for  the  use  of  teams  and  vehicles,  and  if  the  value  of  the 
lot  is  diminished  thereby.  (Southern  Pac.  R.  R.  Co.  v.  Reed, 
41  Cal.  256.) 

An  act  providing  that  a  tax  collector  shall  receive  the  fees 
allowed  by  law,  and  pay  a  part  of  such  fees  into  the  treasury 
for  the  benefit  of  the  county,  does  not  take  private  property  for 
public  use.     (Ream  v.  Siskiyou  County,  36  Cal.  620.) 

Public  use. — The  formation  of  an  irrigation  district  for  the 
purpose  of  reclaiming  arid  land  is  a  public  purpose  for  which 
private  property  may  be  taken.  (Turlock  Irr.  Dist.  v.  Williams, 
76  Cal.  360,  18  Pac.  379;  Central  Irr.  Dist.  v.  De  Lappe,  79  Cal. 
351,  21  Pac.  825;  Crall  v.  Peso  Irr.  Dist.,  87  Cal.  140,  26  Pac. 
797.) 

The  legislature  is  the  sole  judge  of  the  public  necessity  or 
advantage  of  a  proposed  improvement  as  a  public  use.  (Gilmer 
V.  Lime  Point,  18  Cal.  229.) 

The  words  "public  use"  mean  a  use  which  concerns  the  whole 
community,  as  distinguished  from  a  particular  individual  or  a 
particular  number  of  individuals.  But  it  is  not  necessary  that 
each  and  every  individual  member  of  society  should  have  the 
same  degree  of  interest  in  this  use,  or  be  personally  or  directly 
affected  by  it,  in  order  to  make  it  public.  (Gilmer  v.  Lime 
Point,  18  Cal.  229.) 


Art.  I,  §  14  CONSTITUTION  OF  1879.  46 

When  tlie  legislature  specially  designates  a  particular  thing 
as  a  public  use,  or  delegates  that  function  to  a  local  board,  the 
courts  -will  not  interfere  with  this  legislative  discretion,  but 
when  the  legislature  simply  designates  a  general  use  as  public, 
the  courts  must  determine  whether  the  particular  use  is  public. 
(Madera  R.  Co.  v,  Raymond  Granite  Co.,  3  Cal.  App.  668,  87 
Pac.  27.)  ^  _^ 

To  condemn  land  within  the  state  for  a  United  States  fort 
or  other  military  or  naval  purpose  is  to  condemn  land  for  a 
public  use.     (Gilmer  v.  Lime  Point,  18   Cal.  229.) 

The  only  test  of  the  admissibility  of  the  power  of  the  state 
to  condemn  land  for  "public  use"  is  that  the  particular  object 
for  which  the  land  is  condemned  tends  to  promote  the  general 
interest,  in  its  relation  to  any  legitimate  object  of  government. 
(Gilmer  v.  Lime  Point,  18  Cal.  229.) 

The  "public  use"  is  left  in  large  measure  to  legislative  deter- 
mination; and  the  legislative  resolve,  by  which  a  tax  is  im- 
posed or  private  property  taken,  is  such  legislative  determina- 
tion. (Stocliton  etc.  R.  R.  Co.  v.  Stockton,  41  Cal.  117;  Contra 
Costa  etc.  Co.  v.  Moss,  23  Cal.  323.) 

But  the  legislative  determination  that  a  certain  business  is  a 
public  use  is  not  conclusive  of  its  character.  (Consolidated 
Channel  Co.  v.  Central  Pac.  R.  R.  Co.,  51  Cal.  269.) 

A  railroad  for  the  transportation  of  passengers  and  freight 
is  a  public  use.  (San  Francisco  etc.  R.  R.  Co.  v.  Caldwell,  31 
Cal.  367;  Contra  Costa  etc.  Co.  v.  Moss,  23  Cal.  323;  Stockton 
etc.  R.  R.  Co.  V.  Stockton,  41  Cal.  147;  Napa  Valley  R.  R.  Co.  v. 
Napa,  30  Cal.  435.) 

The  taking  of  land  by  a  drainage  district  for  its  ditch  is  a 
public  use.  (Laguna  Drainage  District  v.  Charles  Main  Co., 
144  Cal.  209,  77  Pac.  933.) 

Private  use. — The  legislature  cannot  take  private  property  for 
a  private  use,  and  it  must  declare  the  purpose  to  be  one  of 
public  necessity  or  convenience.  (Nickey  v.  Stearns  Ranchos 
Co  126  Cal.  ISO,  58  "Pac.  459;  Consolidated  Channel  Co.  v. 
Central  Pac.  R.  R.  Co.,  51  Cal.  269;  Brenham  v.  Story,  39  Cal. 
179;  Sherman  v.  Buick,  32  Cal.  241,  91  Am.  Dec.  577.) 

Thus  an  act  permitting  a  person  to  build  a  flume  on  the  land 
of  another  to  carry  off  the  tailings  from  his  mine  is  void. 
(Consolidated  Channel  Co.  v.  Central  Pac.  R.  R.  Co.,  51  Cal. 
269.) 


47  CONSTITUTION  OF  1879.  Art.  I,  §14 

Also  an  act  giving  a  right  to  miners  to  enter  upon  private 
property,  where  no  such  right  existed  anterior  to  its  passage. 
(Gillan  v.  Hutchinson,  16  Cal.  153.) 

Also  an  act  authorizing  an  administrator  to  sell  real  property 
belonging  to  the  estate  of  his  decedent,  who  died  before  the 
passage  of  the  act,  except  in  satisfaction  of  the  liens  of  cred- 
itors, for  the  support  of  the  family,  or  to  pay  the  expenses  of 
administration.     (Brenham  v.  Story,  39  Cal.  179.) 

The  legislature  has  power  to  open  so-called  "private  roads," 
from  main  roads  to  the  residences  or  farms  of  individuals.  The 
fact  that  they  are  called  "private"  is  immaterial,  since  all  roads 
are  public.  (Sherman  v.  Buick,  32  Cal.  241,  91  Am.  Dee.  577; 
County  of  Madera  v.  Eaymond  G.  Co.,  139  Cal.  128,  72  Pac, 
915.) 

Damaged. — The  provision  of  this  section  against  property 
being  damaged  for  public  use  is  not  found  in  the  constitution 
of  1849.  As  to  the  meaning  of  the  word  "damaged"  as  used 
in  this  section,  see  Eeardon  v.  San  Francisco,  66  Cal.  492,  501- 
506,  56  Am.  Rep.  109,  6  Pac.  317. 

A  mere  infringenient  of  the  owner's  personal  pleasure  or 
enjoyment,  or  merely  rendering  the  property  less  desirable  for 
certain  purposes,  or  even  causing  personal  annoyance  and  dis- 
comfort, does  not  constitute  a  damage  within  the  meaning  of 
this  section.  (Eachus  v.  Los  Angeles  etc.  Ey.  Co.,  103  Cal.  614, 
42  Am.  St.  Eep.  149,  37  Pac.  750.) 

Digging  and  maintaining  ditches  and  drains  across  private 
lands  is  a  taking  of  property.  (Nickey  v.  Stearns  Eanchos  Co., 
126  Cal.  150,  58  Pac.  459.) 

Where  the  damage  is  not  the  natural,  certain  and  immediate 
consequences  of  an  improvement,  compensation  need  not  be 
made  in  advance.  (De  Baker  v.  Eailway  Co.,  106  Cal.  257,  46 
Am.  St.  Eep.  268,  39  Pac.  610.) 

Streets. — A  city  is  liable  for  damages  caused  the  owner  of 
an  abutting  lot  by  excavating  the  street  in  front  thereof,  in 
pursuance  of  a  contract  let  by  the  city  for  that  purpose. 
(Eachus  V,  Los  Angeles,  130  Cal.  492,  80  Am.  St.  Rep.  147,  62 
Pac.  829;  Eeardon  v.  San  Francisco,  66  Cal.  492,  56  Am.  Eep. 
109,  6  Pac.  317.) 

Damages  caused  by  the  raising  of  a  street  to  the  official  grade 
cannot  be  pleaded  as  a  defense  to  an  action  brought  to  foreclosa 


Art.  I,  §  14  CONSTITUTION  OF  1879.  48 

the  lien  for  improving  the  street.  (Hornung  v.  McCarthy,  12(5 
Cal.  17,  58  Pac.  303.) 

An  owner  of  land  abutting  upon  a  street  is  entitled  to  com- 
pensation for  any  injury  to  his  property,  which  he  sustains  over 
and  above  that  sustained  in  common  with  other  abutting  owners, 
resulting  from  a  change  in  the  grade  of  the  street.  (Eachus 
V.  Los  Angeles  Ey.  Co.,  103  Cal.  614,  42  Am.  St.  Eep.  149,  37 
Pac.  750;  Jennings  v.  Le  Koy,  63  Cal.  397.) 

But  a  city  is  not  responsible  for  the  unauthorized  act  of  its 
oflQcers  in  raising  the  grade  of  a  street  and  thus  damaging  ad- 
joining property.  (Sievers  v.  San  Francisco,  115  Cal.  G48,  56 
Am.   St.   Rep.   153,  47   Pac.   687.) 

To  change  the  channel  of  a  natural  watercourse  so  as  to  in- 
crease the  flow  of  water  in  another  watercourse,  to  the  injury 
of  adjoining  lands,  is  a  violation  of  this  section.  (Rudel  v.  Los 
Angeles,  118  Cal.  281,  50  Pac.  400;  Conniff  v.  San  Francisco,  67 
Cal.  45,  7  Pac.  41;  Tyler  v.  Tehama  Co.,  109  Cal.  618,  42  Pac. 
240.  But  see  Green  v.  Swift,  47  Cal.  536;  Larrabee  v.  Clover- 
dale,  131  Cal.  96,  63  Pac.  143.) 

A  municipal  corporation  is  liable  for  damages  caused  by  the 
construction  of  sewers,  etc.,  in  such  a  manner  that  the  surface 
water  of  a  large  territory,  which  did  not  naturally  flow  in  that 
direction,  is  gathered  into  a  body  and  precipitated  upon  private 
property.  (Stanford  v.  San  Francisco,  111  Cal.  198,  43  Pac. 
605.) 

But  a  municipal  corporation  is  not  liable  for  damages  caused 
by  the  prevention  of  the  flow  of  surface  water  from  the  lot  of 
a  private  owner,  by  reason  of  the  raising  of  a  street  to  the 
grade  established  by  law,  where  such  surface  water  does  not 
run  in  a  natural  channel  across  the  lot.  (Corcoran  v.  Benicia, 
96  Cal.  1,  31  Am.  St.  Eep.  171,  30  Pac.  798;  Lampe  v.  San 
Francisco,  124  Cal.  546,  57  Pac.  461.) 

A  statute  exempting  a  municipal  corporation  from  liability 
for  damages  for  injuries  sustained  by  any  person  on  its  graded 
streets,  but  making  the  oflicers  of  the  city  liable  therefor,  is 
valid.     (Parsons  v.  San  Francisco,  23  Cal.  462.) 

A  contractor  of  the  city  is  not  liable  under  this  provision  for 
damage  to  private  property  caused  by  a  public  improvement. 
(De  Baker  v.  Railway  Co.,  106  Cal.  257,  46  Am.  St.  Eep.  237,  39 
Pac.  610.) 


49  CONSTITUTION  OF  1879.  Art.  I,  §  14 

Tlie  street  opening  act  (Stats.  1SS9,  p.  70)  is  not  violative  of 
this  section.  The  provisions  of  the  law,  so  far  as  they  pertain 
to  the  assessment  of  its  lands  in  tlie  district  for  special  benefits, 
are  referable  to  the  sovereign  power  of  taxation.  (Clute  v. 
Turner,  157  Cal.  73,  106  Pac.  240.) 

Procedure. — Section  1254  of  the  Code  of  Civil  Procedure,  pro- 
viding that  the  plaintiff  in  an  action  of  eminent  domain  may 
enter  into  possession  without  first  making  compensation,  is  in 
violation  of  this  section.  (Steinhart  v.  Superior  Court,  137 
Cal.  575,  92  Am.  St.  Eep.  183,  70  Pac.  629,  59  L.  E.  A.  404; 
Beveridge  v.  Lewis,  137  Cal.  619,  92  Am.  St.  Eep.  188,  67  Pac. 
1040,  70  Pac.  1083,  59  L.  E.  A.  581.  But  see  Spring  Valley  W. 
W.  V.  Drinkhouse,  95  Cal.  220-,  30  Pac.  218.) 

A  statute  allowing  the  plaintiff  to  take  possession  upon  the 
filing  of  a  bond  is  void.  (Vilhac  v.  Stockton  etc.  E.  E.  Co.,  53 
Cal.  208;  San  Mateo  W,  W.  v,  Sharpstein,  50  Cal.  284;  Sanborn 
v.  Belden,  51  Cal  266.  But  see  Fox  v.  Western  etc.  E.  E,  Co., 
31  Cal.  538.) 

Section  1254  of  the  Code  of  Civil  Procedure  authorizing  the 
plaintiff  in  eminent  domain  to  be  put  into  possession  upon 
making  a  proper  deposit  in  court  is  constitutional.  (Heilbron 
V,  Superior  Court,  151  Cal.  271,  90  Pac.  706.) 

This  provision  contemplates  and  provides  for  a  proceeding  in 
court  in  all  cases  where  private  property  is  taken  for  a  public 
use,  and  prohibits  any  other  proceeding  to  that  end;  and  the 
owner  is  entitled  to  a  jury  trial  for  the  purpose  of  ascertaining 
the  damages.  (Weber  v.  Santa  Clara  Co.,  59  Cal.  265;  Trahern 
V.  San  Joaquin  Co.,  59  Cal.  320.) 

The  means  of  compensation  must  be  provided  before  the  prop- 
erty is  taken.     (McCauley  v.  Weller,  12  Cal.  500.) 

If  failure  be  made  in  paying  or  providing  such  compensation, 
the  party  may  retake  possession  of  the  property.  (Colton  v. 
Eossi,  9  Cal.  595.) 

The  state  may  select  its  own  agents  and  agencies  in  exercis- 
ing the  power  of  eminent  domain,  and  may  select  foreign  cor- 
porations or  governments.     (Gilmer  v.  Lime  Point,  18  Cal.  229.) 

The  provision  for  just  compensation  only  requires  that  a  cer- 
tain and  adequate  remedy  be  provided  by  which  the  owner  can 
obtain  his  compensation  without  unreasonable  delay;  and  a  law 
providing  for  a  jury  to  determine  the  value,  that  the  money  be 
Constitution — 4 


Art.  I,  §  14  CONSTITUTION  OF  1879.  50 

paid  into  the  county  treasury  for  the  owner,  to  be  paid  to  hirn 
when  his  ownership  is  ascertained,  is  valid.  (Gilmer  v.  Lime 
Point,  18  Cal.  229.) 

An  act  providing  for  a  proposed  alteration  of  a  public  road, 
and  requiring  persons  claiming  compensation  for  land  to  De 
taken  to  present  their  claims  within  a  certain  time,  or  be 
deemed  as  waiving  all  right  to  damages,  is  valid.  (Potter  v. 
Ames,  43  Cal.  75.) 

It  is  competent  for  the  legislature  to  prescribe  the  several 
steps  to  be  pursued  in  the  assertion  of  the  right  to  compensa- 
tion for  land  appropriated  for  public  use,  but  the  prescribed 
procedure  must  not  destroy  or  substantially  impair  the  right 
itself.     (Potter  v.  Ames,  43  Cal,  75.) 

The  fact  to  be  ascertained  is  the  value  of  the  land  at  the 
time  it  is  taken,  and  testimony  to  prove  the  annual  net  profits 
is  not  admissible.     (Stockton  etc.  Co.  v.  Galgiana,  49  Cal.  139.) 

Compensation. — An  ordinance  fixing  water  rates  must  allow 
a  just  and  reasonable  compensation  to  the  water  company  for 
the  property  used  and  the  services  furnished  by  it.  (San  Diego 
Water  Co.  v.  San  Diego,  118  Cal.  556,  62  Am.  St.  Eep.  261,  50 
Pac.  633,  38  L.  E.  A.  460, 

In  a  condemnation  proceeding  the  land  owner  is  not  liable  for 
costs,  but  is  entitled  to  recover  his  own  costs  from  the  plaintiff, 
(San  Francisco  v.  Collins,  98  Cal.  259,  33  Pac.  56.) 

Where  a  railroad  company,  prior  to  the  commencement  of 
proceedings  to  condemn  a  right  of  way,  but  with  a  bona  fide 
intent  to  commence  such  proceedings,  erects  structures  thereon, 
it  is  not  required  to  pay  for  the  structures  so  erected  in  the 
condemnation  proceeding.  (Albion  Kiver  R.  R.  Co.  v,  Hesser, 
84  CaL  435,  24  Pac,  288;  San  Francisco  etc.  R.  R.  Co,  v,  Taylor, 
86  Cal.  246,  24  Pac.  1027.) 

The  provision  of  section  1249  of  the  Code  of  Civil  Procedure 
that,  for  the  purpose  of  assessing  compensation  and  damages, 
the  right  thereto  shall  be  deemed  to  have  accrued  at  the  date 
of  the  summons,  is  not  in  conflict  with  this  provision.  (Cali- 
fornia Southern  R.  R.  Co.  v.  Kimball,  61  Cal.  90;  Tehama  Co,  v. 
Bryan,  68  Cal.   57,  8  Pac,  673.) 

Under  the  former  constitution,  where  the  land  taken  is  a 
part  only  of  a  tract,  the  difference  between  the  value  of  the 
tract  without  the  improvement  and  with  it  is  the  compensation 


51  CONSTITUTION  OP  1879.  Art.  I,  §  14 

to  be  made.  (San  Francisco  etc.  E.  E.  Co.  v.  Caldwell,  31  Cal. 
367.) 

Both  the  injury  to  the  land  and  the  benefit  to  it  should  be 
considered.  (San  Francisco  etc.  E.  E.  Co.  v.  Caldwell,  31  Cal. 
367.) 

Section  1249  of  the  Code  of  Civil  Procedure,  fixing  the  dam- 
ages at  the  date  of  the  summons,  is  constitutional.  (Los  An- 
geles V.  Gager,  10  Cal.  App.  378,  102  Pac.  17.) 

The  defendant  is  entitled  to  receive  for  a  strip  of  land  taken 
for  an  alley  an  amount  equal  to  that  for  which  it  could  have 
been  sold  in  the  open  market,  on  the  day  of  the  summons,  for 
cash,  after  reasonable  time  taken  by  the  owner  to  make  the 
sale.     (Santa  Ana  v.  Brunner,  132  Cal.  234,  64  Pac.  287.) 

The  provision  of  this  section,  providing  for  compensation, 
"irrespective  of  any  benefit  from  any  improvement  proposed," 
is  not  limited  to  the  land  taken,  but  also  to  the  land  not  taken, 
and  the  damages  to  the  property  not  taken  must  be  fixed,  irre- 
spective of  any  benefit  which  may  result  from  the  proposed  im- 
provement. (San  Bernardino  etc.  Ey.  Co.  v.  Haven,  94  Cal.  489, 
29  Pac.  875.) 

The  provision  of  this  section,  prohibiting  any  deduction  from 
the  damages  to  land  not  taken  of  the  amount  of  benefits  accru- 
ing from  the  improvement  to  such  land,  only  applies  to  "cor- 
porations other  than  municipal,"  and  does  not  apply  to  indi- 
viduals.    (Moran  v.  Eoss,  79  Cal.  549,  21  Pac.  958.) 

In  a  proceeding  by  a  railroad  corporation  to  condemn  land 
for  its  road,  the  compensation  to  be  awarded  the  owner  must 
be  ascertained  irrespective  of  any  benefit  that  will  accrue  to 
the  remainder  of  his  land  from  the  building  of  the  road.  (Pa- 
cific Coast  Ey.  Co.  v.  Porter,  74  Cal.  2G1,  15  Pac.  774.) 

An  act  requiring  commissioners,  in  assessing  the  value  of 
lands  sought  to  be  taken  by  a  railroad  company,  to  make  allow- 
ance for  any  benefit  that  will  accrue  to  the  person  whose  lands 
are  taken,  is  valid.  (San  Francisco  etc.  E.  E.  Co.  v.  Caldwell, 
31  Cal.  367.) 

The  increased  cost  of  irrigation  which  would  be  caused  by 
the  building  of  a  railroad  is  a  legitimate  subject  of  inquiry  for 
the  jjurpose  of  ascertaining  the  damage  sustained  by  the  owner. 
(San  Bernardino  etc.  Ey.  Co.  v.  Haven,  94  Cal.  489,  29  Pac.  875.) 

A  county  is  not  a  nuinicipal  corporation  within  the  moaning 
of  this  section.  (San  Mateo  v.  Coburn,  130  Cal.  631,  63  Pac. 
78.) 


Art.  I,  §  14  CONSTITUTION  OF  1879.  52 

Assessments. — An  assessment  upon  a  lot  adjacent  to  a  street 
to  pay  for  improvements  made  on  the  street  cannot  be  main- 
tained when  the  lot  has  received  only  an  injury  by  the  work 
on  the  street;  and  therefore  in  no  case  can  the  owner  be  made 
personally  liable  for  any  deficiency  after  the  lot  has  been  ex- 
hausted. (Creighton  v.  Manson,  27  Cal.  613;  Taylor  v.  Palmer, 
31  Cal.  240;  Gaffney  v.  Gough,  36  Cal.  104;  Coniff  v.  Hastings, 
36  Cal.  292.     But  see  Walsh  v.  Mathews,  29  Cal.  124.) 

Benefits  for  street  improvements  accrue  to  the  land  and  not 
to  the  buildings.     (Appeal  of  Piper,  32  Cal.  530.) 

The  so-called  "front-foot"  method  of  assessment  for  street 
improvements  has  been  many  times  upheld  in  this  state. 
(Chambers  v.  Satterlee,  40  Cal.  497;  Hadley  v.  Dague,  130  Cal. 
207,  62  Pac.  500;  Cohen  v.  Alameda,  124  Cal.  504,  57  Pac.  377; 
Emery  v.  San  Francisco  etc.  Co.,  28  Cal.  345;  Emery  v.  Brad- 
ford, 29  Cal,  75;  Taylor  v.  Palmer,  31  Cal.  240;  Whiting  v. 
Quackenbush,  54  Cal.  306;  Whiting  v.  Townsend,  57  Cal.  515; 
Lent  V.  Tillson,  72  Cal.  404,  14  Pac.  71;  Jennings  v.  Le  Breton, 
80  Cal.  8,  21  Pac.  1127;  San  Francisco  etc.  Co.  v.  Bates,  134 
Cal.  39,  66  Pac.  2;  Banaz  v.  Smith,  133  Cal.  102,  65  Pac.  309.) 

Considerable  doubt  was  cast  upon  the  correctness  of  these 
decisions  by  the  decision  of  the  United  States  supreme  court 
in  Norwood  v.  Baker,  172  U. 'S.  269,  19  Sup.  Ct.  187,  43  L. 
Ed.  443,  but  the  doctrine  of  these  cases  has  been  since  sustained 
by  the  decision  of  that  court  in  Tonawanda  v.  Lyon.  181  U.  S. 
389,  21  Sup.  Ct.  609,  45  L.  Ed.  908. 

An  assessment  for  a  street  improvement  upon  the  front-foot 
system  is  an  exercise  of  the  power  of  taxation,  and  not  of 
eminent  domain.  (Emery  v.  San  Francisco  etc.  Co.,  28  Cal. 
345.) 

Benefits  may  be  assessed  in  the  ratio  of  their  value.  (Appeal 
of  Piper,   32  Cal.  530.) 

An  assessment  upon  an  assessment  district  is  valid.  (Appeal 
of  Piper,  32  Cal.  530.) 

The  street  bond  act,  authorizing  the  imposition  of  a  charge 
upon  property  for  ten  years  is  not  invalid,  as  taking  private 
property  for  public  use.  (German  Sav.  etc.  Soc.  v.  Eamish, 
138  Cal.  120,  69  Pac.  89,  70  Pac.  1067.) 

Jury. — The  right  of  trial  by  jury  in_  cases  of  eminent  domain 
did  not  exist  prior  to  the  new  constitution.  (Koppikus  v.  State 
Capitol  Commrs.,  16  Cal.  248;  People  v.  Blake,  19  Cal.  579.) 


53  CONSTITUTION  OF  1879.  Art.  I,  §  15 

Police  power. — The  police  power  will  not  authorize  the  state 
to  take  private  property  for  public  use  without  compensation, 
when  such  property  can  be  condemned  and  paid  for.  (People 
V.  Elk  etc.  Co.,  107  Cal.  221,  48  Am.  St.  Eep.  125,  40  Pac.  531.) 

This  provision  does  not  prevent  the  legislature  from  prohibit- 
ing the  conducting  of  offensive  trades  within  the  limits  of  a 
city.     (Ex  parte  Shrader,  33  Cal.  279.) 

A  person  having  on  hand  large  quantities  of  wine  at  the  time 
of  its  enactment  is  not  deprived  of  his  property  without  just 
compensation  by  a  county  ordinance  which  prohibits  the  sale  of 
liquors  within  the  county.  (Ex  parte  Young,  154  Cal.  317,  97 
Pac.  822,  22  L.  E.  A.,  N.  S.,  330.) 

The  restriction  of  a  municipal  ordinance  which  undertakes  to 
.absolutely  forbid  the  erection  and  maintenance  of  billboards 
for  advertising  purposes  is,  if  not  a  taking  pro  tanto  of  the 
property,  a  damaging  thereof,  for  which  the  owner  is  entitled 
to  compensation.  (Varney  &  Green  v.  Williams,  155  Cal.  318, 
132  Am.  St.  Rep.  88,  100  Pac.  867,  21  L.  E.  A.,  N.  S.,  741.) 

Imprisonment  in  civil  cases. 

Sec.  15.  No  person  shall  be  imprisoned  for  debt  in 
any  civil  action,  on  mesne  or  final  process,  unless  in 
cases  of  fraud,  nor  in  civil  actions  for  torts,  except  in 
cases  of  willful  injury  to  person  or  property ;  and  no 
person  shall  be  imprisoned  for  a  militia  fine  in  time  of 
peace. 

IMPRISONMENT  FOR  DEBT.— An  assault  and  battery  is 
not  a  case  of  fraud  within  the  meaning  of  this  provision.  (Ex 
parte  Prader,  6  Cal.  239.) 

In  a  suit  to  recover  money  received  by  a  person  as  agent, 
such  agent  cannot  be  arrested  without  showing  some  fraudulent 
conduct  on  his  part,  or  a  demand  on  him  by  the  principal  and 
a  refusal  to  pay.     (In  re  Holdforth,  1  Cal.  438.) 

The  proceedings  for  the  settlement  of  an  estate  are  not  a 
civil  action  within  the  meaning  of  this  section.  (Ex  parte 
Smith,  53  Cal.  204.) 


Art.  I,  §  16  CONSTITUTION  OF  1879.  54 

Nor  is  money  in  the  hands  of  an  executor  a  "debt"  within 
the  meaning  of  this  section.     (Ex  parte  Smith,  53  Cal.  204.) 

To  punish  a  person  by  imprisonment  for  failure  to  pay  a 
debt  to  a  receiver  is  in  violation  of  this  provision.  (Knutte  v. 
Superior  Court,   134  Cal.  660,  66  Pac.   875.) 

Laws  prohibited — Bills  of  attainder,  ex  post  facto,  etc. 

Sec.  16.  No  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts,  shall  ever  be 
passed. 

IMPAIRING  OBLIGATION  OF  CONTRACTS— Contract.— A 

liquor  license  is  not  a  contract  within  the  meaning  of  this  sec- 
tion, and  may  be  revoked  at  any  time.  (Hevren  v.  Reed,  126 
Cal.  219,  58  Pac.  536.) 

No  person  has  a  vested  right  to  an  unenforced  penalty;  and 
if  such  a  penalty  is  reduced  to  judgment,  the  judgment  will  be 
reversed  upon  appeal,  if,  pending  the  appeal,  the  statute  impos- 
ing the  penalty  is  repealed.  (Anderson  v.  Byrnes,  122  Cal.  272, 
54  Pac.  821.) 

As  to  whether  or  not  the  charter  of  a  corporation  is  a  con- 
tract within  the  meaning  of  this  provision,  see  Spring  Valley 
W.  W.  V.  San  Francisco,  61  Cal.  3. 

A  legislative  grant  of  property  to  a  municipal  corporation  is 
an  executed  contract,  and  as  such  within  this  clause.  (Grogan 
V.  San  Francisco,  18  Cal.  590.) 

The  right  to  practice  law  is  not  a  contract.  (Cohen  v. 
Wright,  22  Cal.  293.) 

An  act  authorizing  the  contractor  to  sue  for  a  street  assess- 
ment is  a  contract.     (Creighton  v.  Pragg,  21  Cal.  115.) 

The  remedy,  so  far  as  it  alfects  substantial  rights,  is  included 
in  the  term  "obligation  of  contracts."  (Welsh  v.  Cross,  146  Cal. 
621,  106  Am.  St.  Rep.  63,  81  Pac.  229,  2  Ann.  Cas.  796.) 

A  law  giving  a  new  remedy  to  determine  whether  land  is 
suitable  for  cultivation  does  not  impair  the  obligation  of  the 
contract  of  purchase.  (Boggs  v.  Ganeard,  148  Cal.  711,  84  Pac. 
195.) 

Judicial  decisions. — The  decisions  of  state  courts  in  regard  to 
general  rules  of  law,  although  they  may  affect  contract  rights, 


55  CONSTITUTION  OF  1879.  Art.  I,  §  16 

are  not  subject  to  tlie  rule  laid  down  by  the  federal  courts  that 
a  judicial  construction  of  a  statute,  so  far  as  contract  rights 
acquired  under  it  are  concerned,  becomes  a  part  of  the  statute, 
and  that  a  change  in  such  construction  has  the  same  effect  on 
contracts  as  a  legislative  amendment.  (Alferitz  v.  Borgwardt, 
126  Cal.  201,  58  Pac.  460.) 

The  decision  holding  that  a  chattel  mortgage  vests  the  title 
in  the  mortgagee  was  not  a  judicial  construction  of  section  1888 
of  the  Civil  Code,  which  was  overlooked  by  the  court,  and  does 
not  fall  within  the  rule  of  the  federal  courts  that  contract  rights 
acquired  under  a  judicial  construction  of  a  statute  by  a  state 
court  will  be  governed  thereby,  and  cannot  be  affected  by  a 
subsequent  change  in  such  construction.  (Alferitz  v.  Borg- 
wardt, 126  Cal.  201,  58  Pac.  460.) 

Decisions  declaring  that  a  conveyance  absolute  in  form,  but 
intended  as  security,  did  not  pass  the  legal  title,  cannot  be  con- 
sidered as  forming  part  of  a  conveyance  executed  after  such 
decisions  and  before  they  were  overruled.  (Allen  v.  Allen,  95 
Cal.  184,  30  Pac.  213,  16  L.  E.  A.  646.) 

Impairing  the  obligation. — Impairing  the  obligation  of  other 
things  than  contracts  is  not  prohibited.  (Robinson  v.  Magee, 
9  Cal.  81,  70  Am.  Dec.  638.) 

A  valid  contract  cannot  be  abrogated  by  the  adoption  of  a 
new  constitution,  any  more  than  it  can  be  by  the  enactment  of 
a  law  by  the  legislature.  (Ede  v.  Knight,  93  Cal.  159,  28  Pac. 
860.) 

An  act  destroying  the  legal  remedy  upon  a  contract  impairs 
the  obligation  of  the  contract.  (Bates  v.  Gregory,  89  Cal.  387, 
26  Pac.  891;  Robinson  v.  Magee,  9  Cal.  81,  70  Am.  Dec.  638; 
Creighton  v.  Pragg,  21  Cal.  115;  Thorne  v.  San  Francisco,  4 
Cal.  127.) 

The  legislature  may  alter  or  change  the  remedy,  provided 
the  right  is  not  materially  affected;  but  whenever  the  remedy  is 
so  far  altered  as  to  impair,  destroy,  change,  or  render  the  right 
scarcely  worth  pursuing,  the  obligation  of  the  contract  upon 
which  the  right  is  founded  is  impaired.  (Smith  v.  Morse,  2 
Cal.  524.) 

The  constitution  does  not  inhibit  all  legislation  in  respect  to 
contracts,  but  only  forbids  the  impairing  of  their  obligation. 
(Thornton  v.  Hooper,  14  Cal.  9.) 


Art.  I,  §  16  CONSTITUTION  OP  1879.  56 

The  legislature  cannot,  after  the  contract  is  made,  change  its 
terms,  or  authorize  a  performance  different  from  that  prescribed 
in  the  contract.     (McGee  v.  San  Jose,  68  Cal.  91,  8  Pac.  641.) 

Contracts  with  state,  counties  and  cities. — A  state  can  no  more 
impair  the  obligation  of  a  contract  made  by  it  with  an  indi- 
vidual than  a  contract  between  two  citizens.  (Floyd  v.  Bland- 
ing,  54  Cal.  41.) 

An  act  extinguishing  the  debts  of  a  city  is  void.  (Smith  v. 
Morse,  2  Cal.  524.) 

An  act  ratifying  an  ordinance  of  the  city  and  county  of  San 
Francisco  transferring  all  of  the  property  of  the  city  to  the 
"Commi'Ssioners  of  the  Sinking  Fund,"  and  thus  placing  it  be- 
yond the  reach  of  the  city's  creditors,  is  void.  (Smith  v.  Morse, 
2  Cal.  524.) 

When  bonds  of  a  city  are  issued  and  accepted  by  the  cred- 
itors of  the  city  under  a  statute  requiring  an  annual  levy  of 
taxes  in  payment  thereof,  the  contract  is  made  as  solemn  and 
binding  and  as  much  beyond  subsequent  legislation  as  it  would 
have  been  if  made  between  private  persons.  (Meyer  v.  Brown, 
65  Cal.  583,  26  Pac.  281;  Bates  v.  Porter,  74  Cal.  224,  15  Pac. 
732.) 

Where  creditors  of  a  city,  under  the  act  of  1851,  creating  the 
board  of  fund  commissioners  of  San  Francisco,  surrendered  the 
old  indebtedness  and  took  a  new  security,  bearing  a  different 
rate  of  interest,  the  act  entered  into  the  contract,  and  cannot 
be  amended  so  as  to  impair  or  destroy  the  rights  of  the  parties 
under  the  contract.  (People  v.  Woods,  7  Cal.  579;  People  v. 
Bond,  10  Cal.  563.) 

The  act  to  authorize  the  funding  of  the  floating  debt  of  San 
Francisco  is  a  contract,  and  its  obligations  cannot  be  impaired 
by  amendments,  but  new  provisions  may  be  added,  provided 
the  rights  of  creditors  are  not  injuriously  affected.  (Thornton 
V.  Hooper,  14  Cal.  9;  Babcock  v.  Middleton,  20'  Cal.  643.) 

As  a  general  rule,  a  provision,  whether  made  by  a  state  or  a 
corporation,  to  meet  its  debts  or  engagements,  may  be  regarded 
as  only  a  means  of  executing  its  own  policy  or  transacting  its 
own  business,  and  may  be  altered  or  repealed  at  pleasure.  (San 
Francisco  v.  Beideman,  17  Cal.  443.) 

An  act  providing  for  the  payment  of  the  debts  of  a  county 
by  refunding  is  not  void,  as  the  creditor  had  no  remedy  against 


57  CONSTITUTION  OF  1879,  Art.  I,  §  16 

the  county  which  could  be  impaired.  (Hunsaker  v.  Borden,  5 
Cal.  288,  63  Am.  Dec.  130.) 

The  legislature  cannot  devest  the  right  of  a  party  to  have  a 
county  warrant  paid  when  that  right  is  complete,  vested  and 
determined.     (Laforge  v.  Magee,  6  Cal.  650.) 

A  statute  requiring  all  persons  holding  certain  county  war- 
rants to  present  them  for  registry  before  a  certain  date  or  be 
forever  barred  from  enforcing  the  payment  thereof  adds  a  new 
condition  to  the  contract,  and  therefore  impairs  its  obligation. 
(Robinson  v.  Magee,  9  Cal.  81,  70  Am.  Dec.  638.) 

This  provision  relates  solely  to  contracts  between  individuals 
and  not  to  contracts  between  individuals  and  the  state,  because 
the  state  cannot  be  sued.  (Myers  v.  English,  9  Cal.  311.  But 
see  23  Am.  &  Eng.  Ency.  of  Law,  1st  ed.,  79.) 

The  provisions  of  the  act  for  the  organization  of  irrigation 
districts  as  to  the  extent  of  the  liability  of  the  land  created 
a  contract  between  the  land  owners  and  the  state,  which  could 
not  be  impaired  by  future  legislation.  (Merchants'  Bank  v. 
Escondido  Irr.  Dist.,  144  Cal.  329,  77  Pac.  937.) 

An  act  authorizing  a  county  to  fund  its  outstanding  warrants, 
which  were  not  to  draw  interest,  and  to  make  the  bonds  given 
in  exchange  therefor  bear  interest,  is  not  unconstitutional. 
(Chapman  v.  Morris,  28  Cal.  393.) 

A  law  for  the  funding  of  the  debts  of  a  county  is  valid,  for 
the  county  cannot  be  sued  except  by  consent  of  the  state,  and 
that  consent  can  be  granted  upon  any  terms  the  state  sees  fit 
to  impose.     (Sharp  v.  Contra  Costa  Co.,  34  Cal.  284.) 

But  while  the  state  and  its  legal  subdivisions  cannot  be  com- 
pelled to  perform  their  contracts,  the  state  cannot  annul  them. 
Therefore,  an  act  creating  funding  commissioners  and  providing 
that  no  claim  against  the  county  shall  be  valid  unless  presented 
to  and  allowed  by  the  commissioners  is  void.  (Rose  v.  Estu- 
dillo,  39  Cal.  270.) 

The  legislature  cannot  require  the  creditors  of  a  county  to 
surrender  their  evidences  of  indebtedness,  and  accept  new  ones 
in  different  terms,  but  it  may  refuse  to  provide  funds  to  pay 
any  portion  of  the  old  indebtedness,  unless  the  creditor  will 
accept  such  new  indebtedness.     (People  v.  Morse,  43  Cal.  534.) 

Retrospective  statutes. — It  is  to  be  presumed  that  no  statute 
is  to  operate  retrospectively,  unless  the  contrary  clearly  appears. 
(Pignaz  v.  Burnett,  119  Cal.  157,  51  Pac.  48.) 


Art.  I,  §  16  CONSTITUTION  OP  1879.  58 

A  retrospective  statute  is  void  only  when  it  deprives  a  person 
of  some  vested  right,  secured  either  by  some  const itiitionaJ 
guaranty,  or  protected  by  the  principles  of  natural  justice. 
(Galland  v.  Lewis,  26  Cal.  46.) 

A  law  making  certain  transfers  presumptively  fraudulent  can- 
not be  given  a  retrospective  effect.  (Cook  v.  Cockins,  117  Cal. 
140,  48  Pac.  1025.) 

Remedial  statutes. — Remedial  statutes,  which  are  retrospec- 
tive, but  do  not  impair  contracts  or  disturb  absolute  vested 
rights,  and  only  go  to  confirm  rights  already  existing,  are  valid. 
(Dentzel  v.  Waldie,  30  Cal.  138.) 

The  legislature  mav  legalize  defective  and  invalid  assessments 
of  taxes.     (People  v.  Holladay,  25  Cal.  300.) 

Particular  statutes. — Where,  upon  the  death  of  the  ancestor, 
the  heirs  become  at  once  vested  with  the  full  title  to  his  real 
estate,  subject  only  to  certain  liens  or  burdens,  the  legislature 
cannot,  by  a  subsequent  enactment,  interfere  with  such  vested 
right  by  authorizing  a  sale  of  the  property  by  an  executor  or 
administrator  solely  for  the  benefit  of  the  heirs.  (Estate  of 
Packer,  125  Cal.  396,  73  Am.  St.  Rep.  58,  58  Pac.  59.) 

A  law  reducing  the  percentage  payable  upon  redemption, 
passed  after  the  sale,  is  void.  (Thresher  v.  Atchison,  117  Cal. 
73,  59  Am.  St.  Rep.  159,  48  Pac.  1020.) 

A  law  imposing  more  onerous  conditions  upon  the  right  to 
redeem  from  a  tax  sale  than  those  which  existed  when  the  sale 
was  made  is  void.  (Teralta  Land  etc.  Co.  v.  Shaffer,  116  Cal. 
518,  58  Am.  St.  Rep.  194,  48  Pac.  613.) 

The  legislature  may  reduce  the  time  within  which  a  deed 
must  be  made  by  a  tax  collector,  provided  a  reasonable  time  is 
allowed  in  which  to  obtain  the  deed.  (Tuttle  v.  Block,  104  Cal. 
443,  38  Pac.  109.) 

To  extend  the  time  for  redemption  is  to  alter  the  substance 
of  the  contract.  (Rollins  v.  Wright,  93  Cal.  395,  29  Pac.  58; 
Barnitz  v.  Beverly,  163  U.  S.  118,  16  Sup.  Ct.  1042,  41  L. 
Ed.  93;  Haynes  v.  Treadway,  133  Cal.  400,  65  Pac.  892;  Malone 
v.  Roy,  134  Cal.  344,  66  Pac.  313.) 

A  statute  passed  after  the  making  of  a  contract,  giving  a 
right  of  redemption  from  an  execution  sale,  is  unconstitutional. 
(Thorne  v.  San  Francisco,  4  Cal.  127.) 

A  law  extending  the  time  of  redemption  passed  after  judg- 
ment, but   before   levy   or   sale,   cannot   apply   to   a   redemption 


59  CONSTITUTION  OF  1879.  Art.  I,  §  16 

from  snc'li  sale.  (Welsh  v.  Cross,  146  Cal.  C21,  106  Am.  St.  Kep. 
63,  81  Pac.  229,  2  Ann.  Cas.  796,  overruling  Tuolumne  Redemp- 
tion Co.  V.  Sedgwick,  15  Cal.  515.) 

A  state  cannot  enact  an  insolvent  law  discharging  the  obliga- 
tions of  contracts  made  out  of  the  state.  (Lowenberg  v.  Levine, 
93  Cal.  215,  28  Pac.  941,  16  L.  E.  A.  159.) 

A  law  which  shortens  the  time  within  which  to  file  a  notice 
of  a  mechanic's  lien  may  constitutionally  be  made  to  apply 
to  pending  cases  of  uncompleted  buildings;  provided,  an  ade- 
quate and  availing  remedy  be  left  to  enforce  the  lien.  (Kerck- 
hoff-Cuzner  Mill  etc.  Co.  v.  Olmstead,  85  Cal.  80,  24  Pac.  648.) 

A  law  providing  for  the  discharge  of  a  debt  contracted 
before  its  adoption  is  valid.  (Porter  v.  Imus,  79  Cal.  183,  21 
Pac.  729.     But  see  16  Am.  &  Eng.  Ency.  of  Law,  2d  ed.,  640.) 

The  construction  of  section  4,  article  13,  of  the  constitution, 
so  that  it  makes  the  mortgagee  of  a  mortgage  executed  prior 
to  the  adoption  of  the  constitution  primarily  liable  for  the 
taxes,  where  the  mortgage  makes  no  provision  on  the  subject, 
does  not  impair  the  obligation  of  the  contract.  (Hay  v.  Hill, 
65  Cal.  383,  4  Pac.  378;  McCoppen  v.  McCartney,  60  Cal.  367.) 

To  give  section  5,  article  13,  of  the  constitution  a  retro- 
spective operation,  would  be  impairing  the  obligation  of  con- 
tracts.    (Beckman  v.  Skaggs,  59  Cal.  541.) 

The  act,  commonly  known  as  the  Water  Lot  Act,  providing 
for  the  disposition  of  submerged  lands  and  fixing  a  line  which 
is  to  "remain  a  permanent  waterfront,"  does  not  amount  to  a 
contract  with  the  grantees  of  the  land  that  the  waterfront  so 
fixed  shall  not  be  extended  or  otherwise  changed.  (Floyd  v. 
Blanding,  54  Cal.  41.) 

An  act  exempting  property  from  execution  after  a  debt  is 
contracted  is  void.     (Smith  v.  Morse,  2  Cal.  524.) 

A  law  changing  the  time  within  which  an  action  must  be 
brought  does  not  impair  any  vested  right,  for  it  only  affects  the 
remedy,  and  not  the  right.     (Billings  v.  Hall,  7  Cal.  1.) 

An  act  requiring  a  person  to  pay  for  improvements  put  upon 
his  land  by  a  trespasser  against  his  will  docs  not  imjiair  the 
obligation  of  any  contract,  as  the  individuals  forming  a  gov- 
ernment are  not  contractors  with  such  government,  within  the 
meaning  of  tils  section.     (Billings  v.  Hall,  7  Cal.  1.) 


Art.  I,  §  16  CONSTITUTION  OF  1879.  60 

An  act  making  void  prior  deeds,  unless  recorded  in  accordance 
tlierewith,  does  not  imx^air  vested  rights.  (Stafford  v.  Lick,  7 
Cal.  479.) 

After  having  made  an  appropriation  in  view  of  a  contemplated 
contract  to  be  based  thereon,  and  such  contract  is  made,  and 
funds  to  meet  the  appropriation  are  received  into  the  treasury, 
the  legislature  cannot  deprive  the  party  with  whom  the  con- 
tract is  made  of  such  funds  bv  repealing  the  appropriation. 
(McCauley  v.  Brooks,  16  Cal.  IL) 

An  act  making  the  assessment  prima  facie  proof  of  the  tax, 
and  prohibiting  the  defendant  from  setting  up  any  informality 
in  the  levy  or  assessment  of  the  tax  is  valid,  since  it  goes  merely 
to  the  remedy.  (People  v.  Seymour,  16  Cal.  332,  76  Am.  Dec. 
521.) 

An  act  requiring  litigants  to  take  the  oath  of  allegiance  is 
valid.     (Cohen  v.  Wright,  22  Cal.  293.) 

The  "Specific  Contract  Act"  is  not  in  violation  of  this  section. 
(Galland  v.  Lewis,  26  Cal.  46;  Otis  v.  Haseltine,  27  Cal.  80.) 

An  act  validating  powers  of  attorney  theretofore  made  by 
married  women  for  the  sale  of  their  separate  property,  and  con- 
veyances made  by  attorneys  in  fact  thereunder,  is  valid.  (Dent- 
zel  V.  Waldie,  30  Cal.  138.) 

The  legislature  may  impose  on  debtors  the  obligation  to  pay 
interest  after  the  passage  of  the  act  on  debts  already  due. 
(Dunne  v.  Mastick,  50  Cal.  244.) 

An  ordinance  providing  that  no  liquor  license  shall  be  granted 
to  any  person  who  has  conducted  the  business  of  selling  liquors 
in  any  place  where  females  are  employed  is  valid.  (Foster  v. 
Police  Commrs.,  102  Cal.  483,  41  Am.  St.  Rep.  194,  37  Pac.  763.) 

EX  POST  FACTO  LAWS. — A  law  changing  the  forms  of  pro- 
cedure by  which  persons  accused  of  crime  are  to  be  tried  for 
offenses  committed  before  the  law  was  passed  is  not  an  ex  post 
facto  law.     (People  v.  Mortimer,  46  Cal.  114.) 

A  crime  committed  before  the  adoption  of  the  constitution  of 
1879  may,  after  such  adoption,  be  prosecuted  by  information. 
(People  V.  Campbell,  59  Cal.  243,  43  Am.  Rep.  257.) 

The  section  of  the  Penal  Code  which  provides  that  one  who 
has  been  convicted  of  petit  larceny,  who  shall  again  commit 
the  same  offense,  is  to  be  deemed  guilty  of  a  felony,  is  not  ex 
post  facto,  when  applied  to  one  who  committed  the  first  offense 


61  CONSTITUTION  OF  1879.  Art.  I,  §  17 

prior  to  the  taking  effect  of  the  provision.  (Ex  parte  GiitierrcT;, 
45  Cal.  42-9.) 

Where,  after  the  commission  of  a  crime,  the  crime  is  reduced 
by  statute  from  a  felony  to  a  misdemeanor,  such  statute  works 
a  repeal  of  the  former  law,  and  such  crime  cannot  be  punished 
under  either  law.     (People  v.  Tisdale,  57  Cal.  104.) 

BILLS  OF  ATTAINDER.— A  resolution  expelling  a  member 
of  the  legislature  is  not  a  bill  of  attainder.  (French  v.  Senate, 
146  Cal.  604,  80  Pac.  1031,  2  Ann.  Cas.  756.) 

Rights  of  foreign  residents. 

Sec.  17.  Foreigners  of  the  white  race,  or  of  African 
descent,  eligible  to  become  citizens  of  the  United  States 
under  the  naturalization  laws  thereof,  while  bona  fide 
residents  of  this  state,  shall  have  the  same  rights  in 
respect  to  the  acquisition,  possession,  enjoyment,  trans- 
mission, and  inheritance  of  all  property,  other  than 
real  estate,  as  native-born  citizens ;  provided,  that  such 
aliens  owning  real  estate  at  the  time  of  the  adoption 
of  this  amendment  may  remain  such  owners;  and  pro- 
vided further,  that  the  legislature  may,  by  statute,  pro- 
vide for  the  disposition  of  real  estate  which  shall  here- 
after be  acquired  by  such  aliens  by  descent  or  devise. 
(Amendment  adopted  November  6,  1894.) 

[ORIGINAL  SECTION.] 
Sec.  17.  Foreigners  of  the  white  race  or  of  African  descent, 
eligible  to  become  citizens  of  the  United  States  under  the  natu- 
ralization laws  thereof,  while  bona  fide  residents  of  this  state, 
shall  have  the  same  rights  in  respect  to  the  acquisition,  posses- 
sion, enjoyment,  transmission,  and  inheritance  of  property  as 
native-born  citizens. 


Art.  I,  §  18  CONSTITUTION  OF  1879,  62 

ALIENS. — An  alien  is  not  eligible  to  an.  office  in  this  state. 
(Walther  v.  Eabolt,  30  Cal.  1S5.) 

By  the  common  law,  aliens  could  not  acquire  property  by 
descent  or  other  operation  of  law;  and  this  section  only  removes 
this  disability  from  those  who  are  bona  fide  residents  within  the 
state.     (Norris  v.  Hoyt,  18  Cal.  217.) 

A  nonresident  alien  may  take  and  hold  property  acquired  by 
purchase  until  office  found.     (Norris  v.  Hoyt,  18  Cal.  217.) 

An  act  permitting  nonresident  aliens  to  inherit  real  and  per- 
sonal estate  is  valid.  (People  v.  Eogers,  13  Cal.  159;  Estate  of 
Billings,  65  Cal.  593,  4  Pac.  639;  Lyons  v.  California,  67  Cal. 
380,  7  Pac.  763.) 

This  provision  by  implication  excludes  nonresident  aliens  from 
the  rights  mentioned  in  this  section.  (Siemssen  v.  Bofer,  6  Cal. 
250.) 

This  section  prohibits  the  legislature  from  depriving  resident 
foreigners  of  any  of  the  rights  enjoyed  by  native-bom  citizens 
with  respect  to  the  acquisition,  possession,  enjoj^ment,  transmis- 
sion, or  inheritance  of  property.  (State  v.  Smith,  70  Cal.  153, 
12  Pac.  121.) 

A  provision  in  the  specifications  for  public  street  work  that 
no  unnaturalized  alien  ghould  be  employed  in  the  work,  except 
with  the  permission  of  the  highway  commission,  is  invalid. 
(City  Street  Imp.  Co.  v.  Kroh,  158  Cal.  308,  110  Pac.  933.) 

Slavery  prohibited. 

Sec.  18.  Neither  slavery  nor  involuntary  servitude, 
unless  for  the  punishment  of  crime,  shall  ever  be  tol- 
erated in  this  state, 

SLAVERY. — Performance  of  work  upon  an  assessment  for 
repair  of  roads  is  not  such  involuntary  servitude  as  is  contem- 
plated by  this  provision.  (In  re  Dassler,  35  Kan.  678,  12  Pac. 
130.) 

On  this  subject,  generally,  see  In  re  Turner,  1  Abb.  U.  S. 
84,  Fed.  Cas.  No.  14,247;  Clark's  Case,  1  Blackf.  122,  12  Am. 
Dec.  213;  In  re  Sah  Quah,  31  Fed.  327;  U.  S.  Const.,  art.  13. 


63  CONSTITUTION  OF  1879.   Art.  I,  §§  19,  20 

Searches  and  seizures,  restriction  on. 

See.  19.  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  effects,  against  unreason- 
able seizures  and  searches,  shall  not  be  violated ;  and  no 
warrant  shall  issue,  but  on  probable  cause,  supported 
by  oath  or  affirmation,  particularly  describing  the  place 
to  be  searched  and  the  persons  and  things  to  be  seized. 

SEARCH  WARRANTS. — The  legislature  has  power  to  author- 
ize the  issuance  of  a  warrant  to  search  the  person  of  an  indi- 
vidual in  a  proper  case.  (Collins  v.  Lean,  68  Cal.  284,  9  Pac. 
173.) 

Sections  1458  to  1461  of  the  Code  of  Civil  Procedure  do  not 
violate  this  section.  (Levy  v.  Suj)erior  Court,  105  Cal.  600,  38 
Pac.  965,  29  L.  R.  A.  811.) 

Treason  defined. 

Sec.  20.  Treason  against  the  state  shall  consist  only 
in  levying  war  against  it,  adhering  to  its  enemies,  or 
giving  them  aid  and  comfort.  No  person  shall  be  con- 
victed of  treason  unless  on  the  evidence  of  two  wit- 
nesses to  the  same  overt  act,  or  confession  in  open 
court. 

TREASON. — The  constitutional  definition  of  treason  in  the 
United  States  constitution  cannot  be  restricted  or  extended  by 
Congress.  (United  States  v.  Greathouse,  2  Abb.  U.  S.  364, 
Fed.  Cas.  No.  15,254;  United  States  v.  Hanway,  2  Wall.  Jr.  139, 
Fed.  Cas.   No.   15,299.) 

As  to  treason  against  a  state,  see  People  v.  Lynch,  11  .Johns. 
549;  Charge  to  Jury,  1  Story,  614,  Fed.  Cas.  No.  18,275. 

The  constitutional  requirement  of  two  witnesses,  etc.,  does  not 
apply  to  the  preliminary  examination  by  magistrate  or  grand 
jury.  (United  States  v.  Hanway,  2  Wall.  Jr.  139,  Fed.  Cas. 
No.  15,299.) 


Art.  I,  §  21  CONSTITUTION   OF   1879.  64 

Privileges  and  immunities  of  citizens. 

Sec.  21.  No  special  privileges  or  immunities  shall 
ever  be  granted  which  may  not  be  altered,  revoked,  or 
repealed  by  the  legislature ;  nor  shall  any  citizen,  or 
class  of  citizens,  be  granted  privileges  or  immunities 
which,  upon  the  same  terms,  shall  not  be  granted  to  all 
citizens. 

EXCLUSIVE  PRIVILEGES.— Under  the  former  constitution, 
it  was  held  that  exclusive  privileges  and  franchises  might  be 
conferred  by  the  legislature  upon  persons  or  corporations.  (Cal- 
ifornia State  Tel.  Co.  v.  Alta  Tel.  Co.,  22  Cal.  398.)  But  this 
decision  was  overruled  in  San  Francisco  v.  Spring  Valley  W. 
W.,  48  Cal.  493,  517. 

The  legislature  may  deny  to  one  man  a  privilege  extended  to 
another.  The  constitution  is  violated  only  when  a  privilege  ex- 
tended to  one  is  denied  to  another  on  substantially  the  same 
facts;  and  whether  the  facts  of  a  particular  case  constitute  a 
proper  exception  to  the  general  law  is  for  the  legislature  to  de- 
termine.    (People  V.  Twelfth  District  Court,  17  Cal.  547.) 

The  provision  of  the  state  dental  law  exempting  from  its 
operation  persons  practicing  before  its  passage  is  not  violative 
of  this  provision.     (Ex  parte  Whitley,  144  Cah  167,  77  Pae.  879.) 

An  ordinance  prohibiting  public  laundries  in  designated  parts 
of  a  city  is  not  in  violation  of  this  section.  (In  re  Hang  Kie, 
69  Cal.  149,  10  Pac.  327.) 

An  ordinance  levying  a  license  tax  upon  all  sheep  which  are 
pastured  in  the  county,  except  sheep  listed  as  taxable  property 
in  the  county,  and  upon  which  taxes  are  paid,  is  in  violation  of 
this  section.     (Lassen  Co.  v.  Cone,  72  Cal.  387,  14  Pac.  100.) 

But  an  ordinance  requiring  all  persons  engaged  in  the  business 
of  raising,  grazing,  herding,  or  pasturing  sheep  in  the  county 
to  pay  an  annual  license  of  fifty  dollars  for  every  thousand 
sheep  is  not  in  violation  of  this  provision.  (Ex  parte  Mirande, 
73  Cal.  365,  14  Pac.  888.) 

A  law  providing  a  special  method  of  assessment  and  collection 
of  taxes  against  railroads  situated  in  more  than  one  county  is 
not  in  violation  of  this  section.     (People  v.  Central  Pac.  R.  R. 


65  CONSTITUTION  OF  1879.  Art.  I,  §  21 

Co.,  105  Cal.  .576,  38  Pac.  90.5.     Overruling  People  v.  Central  Pac. 
R.  R.  Co.,  83  Cal.  393,  23  Pac.  303.) 

An  act  making  it  a  misdemeanor  to  keep  open  a  barber-shop 
on  Sundays  or  other  holidays  is  in  violation  of  this  section. 
(Ex  parte' Jentzsch,  112  Cal.  468,  44  Pac.  803,  32  L.  R.  A.  664.) 

The  Primary  Election  Law  of  1899,  which  prohibits  the  elec- 
tion of  delegates  to  a  convention  of  any  political  party  not 
representing  three  per  cent  of  the  votes  cast  at  the  previous 
election,  is  void.  (Britton  v.  Board  of  Election  Commrs.,  129 
Cal.  337,  61  Pac.  1115,  51  L.  R.  A.  115.  Per  Henshaw,  J.,  Van 
Dyke,  J.,  and  McFarland,  J.) 

The  provision  of  the  County  Government  Act  that  no  sup- 
plies, etc.,  shall  be  purchased  for  the  county  from  any  person 
who  has  not  had  a  business  in  the  county  for  a  year  prior  to 
the  purchase  is  in  violation  of  this  section.  (Van  Harlingen  v. 
Doyle,  134  Cal.  53,  66  Pac.  44,  54  L.  R.  A.  771.) 

The  act  regulating  the  practice  of  medicine  and  surgery  does 
not  violate  this  section.  (Ex  parte  Gerino,  143  Cal.  412,  77  Pac. 
IGO,  66  L.  R.  A.  249.) 

An  act  applying  uniformly  to  all  cities  of  a  particular  class 
is  not  in  violation  of  this  section.  (Ex  parte  Jackson,  143  Cal. 
564,  77  Pac.  457.) 

The  provision  of  section  1197  of  the  Political  Code,  forbidding 
the  name  of  a  nominee  to  be  placed  upon  the  ballot  more  than 
once,  is  in  violation  of  this  section.  (Murphy  v.  Curry,  137  Cal. 
479,  70  Pac.  461,  59  L.  R.  A.  97.) 

A  law  regulating  the  rate  of  interest  on  chattel  mortgages  on 
certain  classes  of  property  is  in  violation  of  this  provision.  (Ex 
parte  Sohneke,  148  Cal.  262,  113  Am.  St.  Rep.  236,  82  Pac.  956, 
2  L.  R.  A.,  N.  S.,  813,  7  Ann.  Cas.  475. 

The  act  in  regard  to  the  practice  of  architecture  is  not  uncon- 
stitutional because  it  discriminates  between  certified  architects 
and  uncertified  architects.  (Ex  parte  McManus,  151  Cal.  331,  90 
Pac.  702.) 

An  ordinance  prohibiting  the  wholesale  liquor  business  within 
a  designated  area  in  a  municipality  is  not  unreasonably  or 
unjustly  discriminatory,  merely  because  saloons  and  restaurants 
where  liquor  is  sold  are  permitted  within  such  prohibited  zone. 
(Grumbach  v.  Lelandc,  154  Cal.  679,  98  Pac.  1059.) 
Constitution — 5 


Art.  I,  §  22  CONSTITUTION  OF  1879.  66 

An  act  regulating  the  hours  of  employment  in  underground 
mines  and  in  smelting  and  reduction  works  does  not  violate  this 
section.     (In  re  Martin,  157  Cal.  51,  106  Pac.  235.) 

A  law  prohibiting  waste  of  water  from  artesian  weUs  is  not 
unconstitutional  because  not  made  applicable  to  surface  water 
and  pumps.     (Ex  parte  Elam,  6  Cal.  App.  233,  91  Pac.  811.) 

The  right  or  privilege  granted  by  the  act  of  1907,  providing 
for  the  change  of  the  boundary  line  between  Fresno  and  Kings 
county,  to  electors  who  have  resided  for  ninety  days  preceding 
the  election  in  the  territory  to  be  transferred  to  Kings  county, 
which  is  not  granted  to  other  electors  of  that  territory  or  to 
other  electors  of  Fresno  county,  is  not  such  a  privilege  as  is 
forbidden  by  this  section  of  the  constitution.  (Wheeler  v.  Her- 
bert, 152  Cal.  224,  92  Pac.  353.) 

Under  this  section  the  amendment  of  November  23,  1907,  to 
section  135  of  the  Code  of  Civil  Procedure  providing  for  the 
transaction  of  judicial  business,  except  in  certain  cases,  on 
special  holidays,  is  unconstitutional  in  that  it  creates  a  class  of 
litigants,  without  any  rational  or  constitutional  distinction  to 
justify  the  classification.  (Diepenbrock  v.  Superior  Court,  153 
Cal.  597,  95  Pac.  1121.) 

The  Insanity  Act  of  1897,  providing  for  the  recovery  from 
the  estates  of  insane  persons  the  cost  of  their  care  and  main- 
tenance, is  valid.  (Napa  State  Hospital  v.  Dasso,  153  Cal.  698, 
96  Pac.  355,  18  L.  E.  A.,  N.  S.,  643,  15  Ann.  Cas.  910.) 

Provisions  of  constitution  construed. 

Sec.  22.  The  provisions  of  this  constitution  are 
mandatory  and  prohibitory,  unless  by  express  words 
they  are  declared  to  be  otherwise. 

MANDATORY  AND  PROHIBITORY.— As  to  the  meaning  of 
this  provision,  see  Matter  of  Maguire,  57  Cal.  604,  40  Am.  Kep. 
125. 

Notwithstanding  this  section,  where  a  provision  of  the  con- 
stitution is  expressly  made  permissive,  as  by  the  use  of  the  word 
"may,"  it  will  not  be  deemed  mandatory.  (Fresno  Nat.  Bank  V. 
Superior  Court,  83  Cal.  491,  24  Pac.  157.) 


67  CONSTITUTION  OF  1879.   Art.  I,  §§  23,  24 

Section  5,  article  11,  of  the  constitution,  is  mandatory. 
(Knight  V.  Martin,  128  Cal.  245,  60  Pac.  849;  Dwyer  v.  Parker, 
115  Cal.  544,  47  Pac.  372.) 

Section  19,  article  11,  of  the  constitution  is  mandatory.  (Mc- 
Donald V.  Patterson,  54  Cal.  245;  Pereria  v.  Wallace,  129  Cal. 
397,  62  Pac.  61.) 

Under  this  provision  it  is  held  that  the  provision  of  section 
11,  article  12,  requiring  sixty  days'  notice  of  a  meeting  of 
stockholders  to  increase  capital  stock,  is  mandatory.  (Navajo 
Mining  Co.  v.  Curry,  147  Cal.  581,  109  Am.  St.  Kep.  176,  82 
Pac.  247.) 

The  constitution  provides  simply  a  limitation  upon  the  power 
of  the  legislature,  which,  otherwise,  is  supreme.  (People  v. 
Nye,  9  Cal.  App.  148,  98  Pac.  241.) 

The  provision  of  section  1  of  article  17  does  not  restrict  the 
power  of  the  legislature  to  give  homesteads  to  the  heads  of 
families  only.     (Hohn  v.  Pauly,  11  Cal.  App.  724,  106  Pac.  2G6.) 

Where  the  constitution  makes  no  provision  as  to  what  shall 
constitute  a  vacancy  in  an  office,  the  legislature  may  specify 
what  constitutes  a  vacancy  and  provide  for  filling  the  same. 
(People  V.  Nye,  9  Cal.  App.  148,  98  Pac.  241.) 

Rights  retained  by  the  people. 

Sec.  23.  This  enumeration  of  rights  shall  not  be 
construed  to  impair  or  deny  others  retained  by  the 
people. 

IMPLIED  RIGHTS.— The  Primary  Election  Law  of  1899, 
which  allows  members  of  one  political  party  to  vote  for  dele- 
gates to  the  party  convention  of  another  party,  is  void.  (Brit- 
ton  V.  Board  of  Election  Commrs.,  129  Cal.  337,  61  Pac.  1115, 
51  L.  R.  A.  115.) 

Property  qualification  not  required. 

Sec.  24.  No  property  qualification  shall  ever  be  re- 
quired for  any  person  to  vote  or  hold  office. 


Art.  I,  §  25  CONSTITUTION  OF  1879.  68 

PROPERTY  QUALIFICATION.— This  section  does  not  apply 
to  a  voter  in  a  reclamation  district.  (People  v.  Reclamation 
Dist.  No.  551,  117  Cal.  114,  48  Pac.  1016.) 

The  provision  of  the  act  creating  the  Sacramento  Drainage 
District  restricting  the  right  to  vote  for  drainage  commissioners 
to  the  owners  of  real  property  within  the  district,  does  no  vio- 
lence to  the  constitutional  inhibition  against  requiring  a  prop- 
erty qualification  for  voters.  (People  v.  Sacramento  Drainage 
District,  155  Cal.  373,  103  Pac.  207.) 

The  provisions  of  the  Primary  Election  Law  of  1909  requiring 
the  payment  of  fees  by  candidates  on  filing  their  nomination 
papers  is  not  the  exaction  of  a  property  qualification  to  vote 
or  hold  office.  The  exaction  of  such  fees  is  a  valid  exercise 
of  the  power  of  the  legislature,  under  section  2^2  of  article  2, 
to  provide  reasonable  conditions  for  the  exercise  of  the  rights 
granted  by  the  act.  (Socialist  Party  v.  XJhl,  153  Cal.  776,  103 
Pac.  181.) 

Right  to  fish  upon  public  lands. 

Sec.  25.  The  people  shall  have  the  right  to  fish 
upon  and  from  the  public  lands  of  the  state  and  in  the 
waters  thereof,  excepting  upon  lands  set  aside  for 
fish  hatcheries,  and  no  land  owned  by  the  state  shall 
ever  be  sold  or  transferred  without  reserving  in  the 
people  the  absolute  right  to  fish  thereupon ;  and  no  law 
shall  ever  be  passed  making  it  a  crime  for  the  people 
to  enter  upon  the  public  lands  within  this  state  for  the 
purpose  of  fishing  in  any  water  containing  fish  that 
have  been  planted  therein  by  the  state ;  provided,  that 
the  legislature  may  by  statute,  provide  for  the  season 
when  and  the  conditions  under  which  the  different 
species  of  fish  may  be  taken.  (New  section  added  by 
amendment  adopted  November  8,  1910.) 


69  CONSTITUTION  OF  1879.  Art.  II.  §  1 


ARTICLE  II. 

RIGHT  OF  SUFFEAGB. 

§  1.  "Who  are  and  who  are  not  electors. 

§  2.  Privileges  of  electors. 

§  2^.  Primary  elections. 

§  3.  Militia  duty,  privilege  of  electors. 

§  4.  Eesidence  of  voters,  gained  or  lost. 

§  5.  Election  by  ballot. 

§  6.  Voting  machines. 

Who  are  and  who  are  not  electors. 

Section  1.  Every  native  citizen  of  the  United  States, 
every  person  who  shall  have  acquired  the  rights  of  cit- 
izenship under  or  by  virtue  of  the  treaty  of  Queretaro, 
and  every  naturalized  citizen  thereof,  who  shall  have 
become  such  ninety  days  prior  to  any  election,  of  the 
age  of  twenty-one  years,  who  shall  have  been  resident 
of  the  state  one  year  next  preceding  the  election,  and 
of  the  county  in  which  he  or  she  claims  his  or  her  vote 
ninety  days,  and  in  the  election  precinct  thirty  days, 
shall  be  entitled  to  vote  at  all  elections  which  are  now 
or  may  hereafter  be  authorized  by  law;  provided,  no 
native  of  China,  no  idiot,  no  insane  person,  no  person 
convicted  of  any  infamous  crime,  no  person  hereafter 
convicted  of  the  embezzlement  or  misappropriation  of 
public  money,  and  no  person  who  shall  not  be  able  to 
read  the  constitution  in  the  English  language  and  write 


Art.  II,  §  1  CONSTITUTION  OF  1879.  70 

his  or  her  name,  shall  ever  exercise  the  privileges  of  an 
elector  in  this  state ;  provided,  that  the  provisions  of  this 
amendment  relative  to  an  educational  qualification  shall 
not  apply  to  any  person  prevented  by  a  physical  disa- 
bility from  complying  with  its  requisitions,  nor  to  any 
person  who  now  has  the  right  to  vote,  nor  to  any  per- 
son who  shall  be  sixty  years  of  age  and  upwards  at  the 
time  this  amendment  shall  take  effect.  (Amendment 
approved  October  10,  1911.) 

[AMENDMENT  OF  1894.] 
Section  1.  Every  native  male  citizen  of  the  United  States, 
every  male  person  who  shall  have  acquired  the  right  of  citizen- 
ship under  or  by  virtue  of  the  treaty  of  Queretaro,  and  every 
male  naturalized  citizen  thereof,  who  shall  have  become  such 
ninety  days  prior  to  any  election,  of  the  age  of  twenty-one 
years,  who  shall  have  been  resident  of  the  state  one  year  next 
preceding  the  election,  and  of  the  county  in  which  he  claims 
his  vote  ninety  days,  and  in  the  election  precinct  thirty  days, 
shall  be  entitled  to  vote  at  all  elections  which  are  now  or  may 
hereafter  be  authorized  by  law;  provided,  no  native  of  China, 
no  idiot,  no  insane  person,  no  person  convicted  of  any  infamous 
crime,  no  person  hereafter  convicted  of  the  embezzlement  or 
misappropriation  of  public  money,  and  no  person  who  shall  not 
be  able  to  read  the  constitution  in  the  English  language  and 
write  his  name,  shall  ever  exercise  the  privileges  of  an  elector 
in  this  state;  provided,  that  the  provisions  of  this  amendment 
relative  to  an  educational  qualification  shall  not  apply  to  any 
person  prevented  by  a  physical  disability  from  complying  with 
its  requisitions,  nor  to  any  person  who  has  the  right  to  vote, 
nor  to  any  person  who  shall  be  sixty  years  of  age  and  upwards 


71  CONSTITUTION  OF  1879.  Art.  II,  §  1 

at   the    time    this    amendment    shall    take    effect.     (Amendment 
adopted  November  6,  1S94.) 

[ORIGINAL  SECTION.] 
Section  1.  Every  native  male  citizen  of  the  United  States, 
every  male  person  who  shall  have  acquired  the  rights  of  citizen- 
ship under  or  by  virtue  of  the  treaty  of  Queretaro,  and  every 
male  naturalized  citizen  thereof,  who  shall  have  become  such 
ninety  days  prior  to  any  election,  of  the  age  of  twenty-one 
years,  who  shall  have  been  a  resident  of  the  state  one  year  next 
preceding  the  election,  and  of  the  county  in  which  he  claims 
his  vote  ninety  days,  and  in  the  election  precinct  thirty  days, 
shall  be  entitled  to  vote  at  all  elections  which  are  now  or  may 
hereafter  be  authorized  by  law;  provided,  no  native  of  China,  no 
idiot,  insane  person,  or  person  convicted  of  any  infamous  crime, 
and  no  person  hereafter  convicted  of  the  embezzlement  or  mis- 
appropriation of  public  money,  shall  ever  exercise  the  privileges 
of  an  elector  in  this  state. 

EIGHT  OF  SUFFRAGE.— When  Congress  admitted  California 
as  a  state,  the  constituent  members  of  the  state,  in  their  aggre- 
gate capacity,  became  vested  with  the  sovereign  powers  of  gov- 
ernment "according  to  the  principles  of  the  constitution,"  and 
had  the  right  to  prescribe  the  qualifications  of  electors.  (People 
V.  De  la  Guerra,  40  Cal.  311.) 

It  was  no  violation  of  the  ninth  article  of  the  treaty  of 
Guadalupe  Hidalgo  that  the  qualifications  of  electors,  as  pre- 
scribed in  the  constitution  of  California,  were  such  as  to  exclude 
some  of  the  inhabitants  from  certain  political  rights.  (People 
V.  De  la  Guerra,  40  Cal.  311.) 

The  elective  franchise  is  not  one  of  the  privileges  of  citizens 
secured  by  the  fourteenth  amendment,  nor  is  the  power  of  the 
state  to  determine  the  class  of  inhabitants  who  may  vote  within 
her  limits  curtailed  by  that  amendment;  and  the  only  limitation 
contained  in  the  fifteenth  amendment  is  that  the  state  cannot 
discriminate  on  account  of  race,  color,  or  previous  condition  of 
Bervitudej   but  the  power  of  exclusion  upon  all  other  grounds, 


Art.  II,  §  1  CONSTITUTION  OF  1879.  72 

including  that  of  sex,  remains  intact.  (Van  Valkenburg  v. 
Brown,  43  Cal.  43,  13  Am.  Eep.  136.) 

The  legislature  cannot  add  any  essential  to  the  constitutional 
definition  of  an  elector.  (Bergevin  v.  Curtz,  127  Cal.  86,  59  Pac. 
312.) 

The  courts  of  ecLUity  have  power  to  see  that  the  constitutional 
rights  of  suffrage  are  enjoyed.  (Cerini  v.  De  Long,  7  Cal.  App. 
398,  94  Pac.  582.) 

A  person  may  be  an  elector,  although  not  a  registered  voter. 
(Bergevin  v.  Curtz,  127  Cal.  86,  59  Pac.  312.) 

Registration  is  not  a  qualification  of  an  elector,  and  cannot 
add  to  the  qualifications  fixed  by  the  constitution;  but  it  is  to 
be  regarded  as  a  reasonable  regulation  by  the  legislature  for 
the  purpose  of  ascertaining  who  are  qualified  electors  in  order 
to  prevent  illegal  voting.  (Bergevin  v.  Curtz,  127  Cal.  86,  59 
Pac,  312.) 

A  primary  election  is  an  election  "authorized  by  law,"  within 
the  meaning  of  this  section,  and  the  provisions  thereof,  defining 
the  qualifications  of  electors,  are  controlling  in  determining  the 
right  to  vote  at  such  elections,  and  such  right  can  neither  be 
enlarged  nor  curtailed  by  the  legislature.  (Spier  v.  Baker,  120 
Cal.  370,  52  Pac.  659,  41  L.  E.  A.  196.) 

A  provision  of  the  Primary  Election  Law  that  all  native-born 
citizens,  who  since  the  last  general  election  have  become  of  legal 
age,  and  who  have  been  legal  residents  of  the  county  thirty 
days  prior  to  the  election,  as  well  as  all  citizens  who  have 
become  such  by  naturalization  since  the  last  general  election, 
and  who  have  been  residents  as  aforesaid,  shall  be  entitled  to 
vote,  is  an  enlargement  of  the  constitutional  right  of  suffrage 
and  void.  (Spier  v.  Baker,  120  Cal.  370,  52  Pac.  659,  41  L.  E. 
A.  196.) 

A  provision  of  the  Primary  Election  Law,  that  no  person  shall 
vote  at  primary  elections  whose  name  does  not  appear  upon 
the  last  great  register,  or  supjjlements  thereto,  curtails  the  right 
of  suffrage,  and  is  void.  (Spier  v.  Baker,  120  Cal.  370,  52  Pac. 
659,  41  L.  E.  A.  196.) 

This  section  does  not  apply  to  a  voter  in  a  reclamation  dis- 
trict. (People  v.  Eeclamation  Dist.  No.  551,  117  Cal.  114,  48 
Pac.  1016.) 

The  act  to  change  the  boundary  line  between  Fresno  and 
Kings  county  is  not  unconstitutional  oecause  it  prescribes  dif- 


73  CONSTITUTION  OF  1879.     Art.  II,  §§  2,  21/2 

ferent  qualifications  for  the  electors  who  shall  be  entitled  to 
vote  at  the  election  therein  provided  for  than  are  prescribed 
by  this  section.     (Wheeler  v.  Herbert,  152  Cal.  224,  92  Pac.  353.) 

The  provision  of  the  Political  Code  that,  when  a  voter  erases 
the  name  of  a  candidate  without  substituting  another,  the  vote 
must  be  counted  for  the  candidate  whose  name  is  erased,  unless 
the  words  "no  vote"  are  written  after  the  name  erased,  is  not 
unconstitutional,  as  prescribing  an  educational  qualification  for 
the  voter,  or  destroying  the  secrecy  of  the  ballot.  (Eutledge  v. 
Crawford,  91  Cal.  526,  25  Am.  St.  Eep.  212,  27  Pac.  779,  13 
L.  R.  A.  761.) 

A  person  born  in  a  foreign  state,  whose  father  was  once  a 
citizen  of  the  United  States,  but  renounced  his  allegiance  before 
the  birth  of  such  person,  is  not  a  citizen  of  the  United  States. 
(Browne  v.  Dexter,  66  Cal.  39,  4  Pac.  913.) 

The  legislature  has  no  power  to  authorize  electors  to  give  their 
votes  at  any  place  outside  of  the  county  or  district  in  which 
they  have  had  a  legal  residence  for  thirty  days  previous  to  the 
election.     (Bourland  v.  Hildreth,  26  Cal.  161.) 

An  act  providing  for  taking  the  votes  of  the  electors  of  the 
state,  who  are  in  the  military  service  of  the  United  States,  out- 
side of  the  county  of  their  legal  residence,  to  be  returned  to 
the  secretary  of  state,  and  counted  in  the  counties  of  the  legal 
residence  of  the  electors,  is  void.  (Bourland  v.  Hildreth,  26 
Cal.  161;  Day  v.  Jones,  31  Cal.  261.) 

The  constitution  does  not  vest  in  any  person  the  right  to  sign 
a  petition  for  the  recall  of  an  officer.  (Davenport  v.  Los  An- 
geles, 146  Cal.  508,  80  Pac.  684.) 

Privileges  of  electors. 

Sec.  2.  Electors  shall  in  all  oases,  except  treason, 
felony,  or  breach  of  the  peace,  be  privileged  from  arrest 
on  the  days  of  election,  during  their  attendance  at  such 
election,  going  to  and  returning  therefrom. 

Primary  election. 

Sec.  21/2.  The  legislature  shall  have  the  power  to 
enact  laws  relative  to  the  election  of  delegates  to  con- 


Art.  II,  §  2l^       CONSTITUTION  OF  1879.  74 

ventions  of  political  parties;  and  the  legislature  shall 
enact  laws  providing  for  the  direct  nomination  of  can- 
didates for  public  office,  by  electors,  political  parties,  or 
organizations  of  electors  without  conventions,  at  elec- 
tions to  be  known  and  designated  as  primary  elections; 
also  to  determine  the  tests  and  conditions  upon  which 
electors,  political  parties,  or  organizations  of  electors 
may  participate  in  any  such  primary  election.  It  shall 
also  be  lawful  for  the  legislature  to  prescribe  that  any 
such  primary  election  shall  be  mandatory  and  obligatory. 
The  legislature  shall  also  have  the  power  to  establish  the 
rates  of  compensation  for  primary  election  officers  serv- 
ing at  such  primary  elections  in  any  city,  or  city  and 
county,  or  county,  or  other  subdivision  of  a  designated 
population,  without  making  such  compensation  uniform, 
and  for  such  purpose  such  law  may  declare  the  popula- 
tion of  any  city,  city  and  county,  county  or  political 
subdivision.  Provided,  however,  that  until  the  legis- 
lature shall  enact  a  direct  primary  election  law  under 
the  provisions  of  this  section,  the  present  primary  elec- 
tion law  shall  remain  in  force  and  effect,  (Amendment 
adopted  November  3,   1908.) 

[AMENDMENT  OF  1900.] 
Sec.  214.  The  legislature  shall  have  the  power  to  enact  law3 
relative  to  the  election  of  delegates  to  conventions  of  political 
parties  at  elections  known  and  designated  as  primary  elections. 
Also  to  determine  the  tests  and  conditions  upon  which  electors, 
political  parties,  or  organizations  of  voters,  may  participate  in 


75  CONSTITUTION  OF  1879.       Art.  II,  §  2l^ 

any  such  primary  election,  which  tests  or  conditions  may  be 
different  from  the  tests  and  conditions  required  and  permitted 
at  other  elections  authorized  by  law;  or  the  legislature  may  dele- 
gate the  power  to  determine  such  tests  or  conditions,  at  primary 
elections,  to  the  various  political  parties  participating  therein. 
It  shall  also  be  lawful  for  the  legislature  to  prescribe  that  any 
such  primary  election  law  shall  be  obligatory  and  mandatory  in 
any  city,  or  any  city  and  county,  or  in  any  county,  or  in  any 
political  subdivision,  of  a  designated  population,  and  that  such 
law  shall  be  optional  in  any  city,  city  and  county,  county,  or 
political  subdivision  of  a  lesser  population,  and  for  such  purpose 
Buch  law  may  declare  the  population  of  any  city,  city  and 
county,  county,  or  political  subdivision,  and  may  also  provide 
what,  if  any,  compensation  primary  election  ofiBcers  in  defined 
places  or  political  subdivisions  may  receive,  without  making 
compensation  either  general  or  uniform.  (Amendment  adopted 
November  6,  1900.) 

PRIMARY  ELECTIONS.— Prior  to  the  adoption  of  this 
amendment,  three  acts  regulating  primary  elections  were  passed 
by  the  legislature,  each  of  which  was  held  invalid  by  the 
supreme  court. 

1.  Act  of  1895. — The  first  act  on  the  subject  was  held  in- 
valid because  it  only  applied  to  counties  of  the  first  and 
second  class,  and  was  therefore  local  and  special.  (Marsh  v. 
Supervisors,  111  Cal.  368,  43  Pac.  975.) 

2.  Act  of  1897. — The  second  act  on  the  subject  was  held 
invalid  on  the  following  grounds:  (a)  because  it  enlarged  the 
right  of  suffrage;  (b)  because  it  restricted  the  right  of 
suffrage;  (c)  because  certain  portions  of  it  were  not  expressed 
in  the  title  of  the  act;  (d)  because  it  was  special,  in  that  it 
discriminated  in  favor  of  and  against  certain  classes  and  in- 
dividuals. (Spier  V.  Baker,  120  Cal.  370,  52  Pac.  659,  41 
L.  R.  A.   196.) 

3.  Act  of  1899. — The  third  act  on  the  subject  was  held  in- 
valid because  it  permitted  members  of  one  political  party  or 
of  no  party  to  vote  for  delegates  to  the  party  convention  of 


Art.  II,  §  21/^       CONSTITUTION  OF  1879.  76 

another  party,  and  thus  took  away  the  rights  of  self-control 
and  self-preservation  from  political  parties.  Three  of  the  jus- 
tices (Henshaw,  J.,  Van  Dyke,  J.,  and  McFarland,  J.)  also 
held  it  invalid  because  it  prohibited  the  election  of  delegates 
to  a  convention  of  any  political  party  not  representing  three 
per  cent  of  the  votes  cast  at  the  last  election.  (Britton  v. 
Board  of  Election  Commrs.,  129  Cal.  337,  61  Pac.  1115,  51  L. 
E.  A.  115.) 

4.  Act  of  1901. — This  section  authorizes  the  provision  of 
the  primary  election  law  of  1901,  requiring  each  person  to 
take  an  oath  that  he  has  a  bona  fide  present  intention  of 
supporting  the  nominees  of  the  party.  (Rebstock  v.  Superior 
Court,  146  Cal.  308,  80  Pac.  65.) 

The  Primary  Election  Law  of  1909  is  not  violative  of  the 
constitution  by  providing  for  an  expression  of  a  choice  as  to 
a  candidate  for  United  States  senator  at  a  primary.  (Socialist 
Party  v.  Uhl,  155  Cal.  776,  103  Pac.   181.) 

The  Primary  Election  Law  of  1909  is  not  invalid  because  it 
does  not  give  to  classes  other  than  political  organizations  the 
right  to  participate  in  the  first  primary  held  under  the  act. 
(Socialist  Party  v.  Uhl,  155  Cal.   776,  103  Pac.  181.) 

The  constitution  only  requires  that  a  primary  election  law 
should  apply  to  general  elections,  and  the  primary  election 
law  of  1909  does  not  violate  the  constitution  by  providing 
that  its  provisions  as  to  primary  elections  shall  not  apply  to 
the  nomination  of  officers  of  municipalities  whose  charters  pro- 
vide a  system  of  nominating  candidates  for  such  offices.  (So- 
cialist Party  v.  Uhl,  155  Cal.  776,  103  Pac.  181.) 

The  constitution  is  not  violated  by  the  primary  election  law 
because  the  latter  does  not  preserve  secrecy  in  voting,  because 
it  arbitrarily  classifies  voters,  because  it  impairs  the  right  of 
citizens  to  assemble  together  and  instruct  their  representatives, 
or  because  it  invests  state  officers  with  judicial  functions. 
(Katz  V.  Fitzgerald,  152  Cal.  433,  93  Pac.  112.) 

The  legislature  may  compel  electors  when  registering  to  de- 
clare their  party  af&liations  as  a  prerequisite  to  the  right  to 
vote  at  primary  elections.  (Schostag  v.  Cator,  151  Cal.  600, 
91  Pac.  502.) 

The  legislature  may  partly  prescribe  the  tests  of  the  rights 
of  electors  to  vote  at  primary  elections,  and  may  partly  dele- 


77  CONSTITUTION  OF  1879.     Art.  II,  §  §  3,  4 

gate  such  power  to  political  parties.     (Schostag  v.  Cator,  151 
Cal.    600,   91   Pac.    502.) 

The  legislature  had  power  to  determine  the  tests  and  con- 
ditions upon  wiich  "electors,"  "political  parties,"  or  "organiza- 
tions of  electors"  should  participate  in  a  primary  election,  and 
the  tests  and  conditions  provided  in  the  primary  election  law 
of  1909  being  reasonable  and  not  arbitrary,  those  provisions 
of  the  act  are  not  unconstitutional.  (Socialist  Party  v.  Uhl, 
155  Cal.  776,  103  Pac.  181.) 

Militia  duty,  privilege  of  electors. 

Sec.  3.  No  elector  shall  be  obliged  to  perform  militia 
duty  on  the  day  of  election,  except  in  time  of  war  or 
public  danger. 

Residence  of  voters,  gained  or  lost. 

Sec.  4.  For  the  purpose  of  voting,  no  person  shall 
be  deemed  to  have  gained  or  lost  a  residence  by  reason 
of  his  presence  or  absence  while  employed  in  the  service 
of  the  United  States,  nor  while  engaged  in  the  naviga- 
tion of  the  waters  of  this  state  or  of  the  United  Stales, 
or  of  the  high  seas ;  nor  while  a  student  at  any  seminary 
of  learning;  nor  while  kept  at  any  almshouse  or  other 
asylum,  at  public  expense;  nor  while  confined  in  any 
public  prison. 

RESIDENCE. — This  provision  does  not  preclude  the  gaining 
of  a  residence  for  the  purpose  of  voting  by  soldiers,  college 
students,  or  inhabitants  of  a  veterans'  home,  upon  proof  of 
their  intention  to  acquire  a  domicile  in  the  county  of  which 
they  are  inhabitants.  (Stewart  v.  Kyser,  105  Cal.  459,  39 
Pac.  19;  People  v.  Holden,  28  Cal.  123.) 

Presence  in  the  state  more  than  six  months  and  in  the 
county  more  than  thirty  days,  under  orders  as  a  soldier  in  the 


Art.  II,  §§  5,  6     CONSTITUTION  OF  1879.  78 

military  service   of  the  United  States,  does  not   of  itself  en- 
title a  person  to  vote.     (Devlin  v.  Anderson,  38  Cal.  92.) 

This  section  does  not  authorize  an  act  providing  for  the 
taking  of  the  votes  of  electors  of  this  state,  in  the  military 
service  of  the  "United  States,  outside  of  the  counties  of  their 
legal  residences.  (Bourland  v.  Hildreth,  26  Cal.  161:  Day  v. 
Jones,  31  Cal,  261.) 

Election  by  ballot. 

Sec.  5.  All  elections  by  the  people  shall  be  by  ballot  • 
or  by  such  other  method  as  may  be  prescribed  by  law; 
provided,  that  secrecy  in  voting  be  preserved.  (All 
after  *  added  by  amendment  adopted  November  3, 
1896.) 

SECRECY  OF  THE  BALLOT.— The  provision  of  the  primary 
election  law  of  1901,  requiring  the  person  voting  to  take  an 
oath  that  he  has  a  bona  fide  present  intention  of  supporting 
the  nominees  of  the  party,  does  not  violate  the  provision  of 
this  section  securing  the  secrecy  of  the  ballot.  (Rebstock  v. 
Superior  Court,  146  Cal.  308,  80  Pac.  65.) 

Voting  machines. 

Sec.  6.  The  inhibitions  of  this  constitution  to  the 
contrary  notwithstanding,  the  legislature  shall  have 
power  to  provide  that  in  different  parts  of  the  state  dif- 
ferent methods  may  be  employed  for  receiving  and  reg- 
istering the  will  of  the  people  as  expressed  at  elections, 
and  may  provide  that  mechanical  devices  may  be  used 
within  designated  subdivisions  of  the  state  at  the  option 
of  the  local  authority  indicated  by  the  legislature  for 
that  purpose.     (Amendment  adopted  November  4,  1902.) 


79  CONSTITUTION  OF  1879.         Art.  Ill,  §  1 

ARTICLE  III. 
DISTEIBUTION  OF  POWEES. 

Section  1,  The  powers  of  the  government  of  the  state 
of  California  shall  be  divided  into  three  separate  de- 
partments— the  legislative,  executive,  and  judicial;  and 
no  person  charged  with  the  exercise  of  powers  properly 
belonging  to  one  of  these  departments  shall  exercise  any 
functions  appertaining  to  either  of  the  others,  except  as 
in  this  constitution  expressly  directed  or  permitted. 

DEPARTMENTS  OF  GOVERNMENT.— The  departments 
mentioned  in  this  section  are  the  departments  of  the  state 
government,  and  not  the  local  governments  thereafter  to  be 
created  by  the  legislature.  (People  v.  Provines,  34  Cal.  ^0; 
Staude  v.  Election  Commrs.,  61  Cal.  313;  Holley  v.  Orange  Co., 
106  Cal.  420,  39  Pac.  790.  Burgoyne  v.  Supervisors,  5  Cal.  9, 
and  cases  following  it,  overruled.) 

This  provision  does  not  place  either  department  above  the 
law,  nor  make  either  independent  of  the  other.  (McCauley 
V.  Brooks,  16  Cal.  11.) 

As  to  how  far  the  several  departments  are  independent  of 
each  other,  see  People  v.  Twelfth  District  Court,  17  Cal.  547. 

Legislative  department. — The  distinction  between  a  judicial 
and  a  legislative  act  is,  that  the  former  determines  what  the 
law  is  and  what  the  rights  of  the  parties  are,  with  reference 
to  transactions  already  had,  and  the  latter  prescribes  what  the 
law  shall  be  in  future  cases  arising  under  it.  (People  v. 
Board  of  Education,  54  Cal.  375.) 

Legislative  power  prescribes  rules  of  conduct  for  the  govern- 
ment of  the  citizen  or  subject,  while  judicial  power  punishes 
and  redresses  wrongs  growing  out  of  rules  previously  estab- 
lished. The  distinction  lies  between  a  rule  and  a  sentence. 
(Ex  parte  Shradcr,  33  Cal.  279;  Smith  v.  Strother,  68  Cal. 
194,  8  Pac.  852;  Wulzen  v.  Supervisors,  101  Cal.  15,  40  Am. 
St.  Rep.  17,  35  Pac.  353.) 


Art.  Ill,  §  1         CONSTITUTION  OP  1879.  80 

The  legislature  cannot  exercise  judicial  functions.  (Guy  v. 
Hermance,  5  Cal.  73,  63  Am.  Dec.  85.) 

An  act  providing  that  no  injiinction  shall  issue  against  com- 
missioners created  by  the  act  is  an  exercise  of  judicial  func- 
tions, and  void.  (Guy  v.  Hermance,  5  Cal.  73,  63  Am.  Dec. 
85.) 

The  election  of  oflcers  is  political,  and  may  be  exercised  by 
both  the  legislative  and  executive  branches  of  the  government. 
(People  V.  Langdon,  8  Cal.  1.) 

To  audit  and  allow  the  claim  of  a  judgment  creditor  against 
a  city  is  not  the  exercise  of  a  judicial  function.  (People  v. 
Supervisors,  11  Cal.  207.) 

The  legislature  may  pass  a  special  law  directing  a  court  to 
transfer  an  indictment  for  murder  pending  therein  to  another 
court  for  trial.     (People  v.  Twelfth  District  Court,  17  Cal.  547.) 

An  act  conferring  upon  boards  of  supervisors  power  to  try 
a  contest  in  relation  to  the  office  of  county  judge  is  void. 
(Stone  V.  Elkins,  24  Cal.  125.) 

An  act  of  the  legislature  granting  a  new  trial,  or  reopening 
a  judgment  in  an  action  between  individuals,  would  be  an  as- 
sumption of  judicial  power;  but  an  act  allowing  a  judgment 
in  favor  of  the  state  to  be  reopened  would  not  be  invalid. 
(People  V.  Frisbie,  26  Cal.  135.) 

The  legislature  cannot  by  law  fix  the  assessed  value  of  prop- 
erty.    (People  V.  Hastings,  29  Cal.  449.) 

The  legislature  has  no  power  to  legalize  existing  pleadings 
substantially  defective,  without  first  requiring  them  to  be 
amended.     (People  v.  Mariposa  Co.,  31  Cal.  196.) 

An  act  determining  that  certain  trades  are  offensive  is  not 
an  exercise  of  judicial  power.     (Ex  parte  Shrader,  33  Cal.  279.) 

An  act  to  validate  a  judgment  of  a  court  void  for  want  of 
jurisdiction  is  void.  (Pryor  v.  Downey,  50  Cal.  388,  19  Am.  Eep. 
656.) 

The  exercise  by  the  legislature  of  visitorial  or  supervisorial 
power  over  corporations  does  not  violate  this  section.  (In  re 
Bunkers,  1  Cal.  App.  61,  81  Pac.  748.) 

The  provisions  of  the  act  regulating  the  practice  of  archi- 
tecture that  the  board  may  adopt  rules  and  regulations  is  not 
a  delegation  of  legislative  function.  (Ex  parte  McManus,  151 
Cal.  331,  90  Pac.  702.) 


81  CONSTITUTION  OF  1879.  Art.  Ill,  §  1 

The  legislative  approval  of  a  survey  of  a  county  line  before 
the  line  was  actually  run  is  not  a  delegation  of  legislative  power 
to  the  survej'or.  (Trinity  County  v.  Meudocino  County,  151 
Cal.  279,  90  Pac.  685.) 

As  to  whether  the  sale  of  the  property  of  a  minor  is  a  matter 
of  judicial  cognizance  exclusively,  see  Paty  v.  Smith,  50  Cal. 
153. 

An  act  prescribing  the  contents  of  a  complaint  to  foreclose 
a  street  assessment  is  not  a  usurpation  of  judicial  functions. 
(Whiting  v.  Townsend,  57  Cal.  515.) 

The  action  of  a  board  of  education,  in  adopting  a  series  of 
readers  for  the  public  schools,  in  lieu  of  a  series  previously  in 
use,  is  an  exercise  of  legislative  and  not  judicial  power.  (People 
V.  Board  of  Education,  54  Cal.  375.) 

Judicial  department. — The  legislature  has  no  power  to  confer 
other  than  judicial  functions  upon  the  courts.  (Burgoyne  v. 
Supervisors,  5  Cal.  9;  Hardenburgh  v.  Kidd,  10  Cal.  402.) 

An  act  authorizing  the  judges  of  the  superior  court  to  fix  the 
salaries  of  the  official  reporters  of  the  courts  is  void  as  imposing 
legislative  functions  upon  the  judiciary.  (Smith  v.  Strother,  68 
Cal.  194,  8  Pac.  852.) 

But  an  act  permitting  the  judge  to  fix  the  compensation  of  a 
shorthand  reporter  after  the  services  are  rendered  does  not  con- 
fer legislative  power  upon  the  judiciary.  (McAllister  v.  Ham- 
lin, 83  Cal.  361,  23  Pac.  357j  Stevens  v.  Truman,  127  Cal.  155, 
59  Pac.  397.) 

An  act  conferring  upon  district  judges  the  power  to  appoint 
police  commissioners  is  not  in  conflict  with  this  section. 
(Staude  v.  Election  Commrs.,  61  Cal.  313.) 

A  law  providing  for  the  change  of  names  of  corporations 
upon  petition  to  the  superior  court  is  not  unconstitutional  as 
delegating  legislative  power  to  the  judiciary,  (Matter  of  La 
Societe  Francaise  etc.,  123  Cal.  525,  56  Pac.  458.) 

The  legislature  cannot  confer  nonjudicial  power  upon  the 
judges  of  a  court  as  commissioners  any  more  than  upon  the 
court  itself.     (Burgoyne  v.  Supervisors,  5  Cal.  9.) 

An    act    conferring   upon   the    courts    of   sessions    the    entire 
management  of  the  financial  business  of  the  counties  is  void. 
(Burgoyne  v.   Supervisors,  5   Cal.  9;   Phelan  v.   San  Francisco, 
6  Cal.  531;   Phelan  v.  San  Francisco,  20  Cal.  39.) 
Constitution — 6 


Art.  Ill,  §  1         CONSTITUTION  OP  1879.  82 

An  act  antliorizing  the  trial  judge  to  make  the  crime  a  felony 
or  a  misdemeanor  is  not  an  attempt  to  delegate  leglslativs 
power.     (In  re  O'Shea,  11   Cal.  App.  568,  105  Pac.  776.) 

The  proceedings  provided  by  the  "Torrens  Land  Law"  are 
judicial  and  not  administrative.  (Robinson  v.  Kerrigan,  151 
Cal.  40,  121  Am.  St.  Rep.  90,  90  Pac.  129,  12  Ann.  Cas.  829.) 

The  duties  conferred  on  the  county  recorder  by  the  "Torrens 
Land  Law"  are  not  judicial.  (Robinson  v,  Kerrigan,  151  Cal. 
40,  121  Am.  St.  Rep.  90,  90  Pac.  129,  12  Ann.  Cas.  829.) 

The  "McEnerney  Act"  for  the  establishment  of  titles  pro- 
vides for  a  judicial  proceeding  and  not  an  administrative  pro- 
ceeding. (Hoffman  v.  Superior  Court,  151  Cal.  386,  90  Pac. 
939.) 

The  corporation  license  tax  act  of  March  29,  1905,  is  not 
unconstitutional  as  conferring  judicial  power  upon  the  secre- 
tary of  state.  His  determination  of  the  class  to  which  a  cor- 
poration belongs,  as  provided  in  section  7  of  the  act,  is  a  mere 
incident  to  the  exercise  of  a  purely  ministerial  function  and 
is  not  binding  on  any  corporation.  (Kaiser  Land  &  Fruit  Co. 
V,  Curry,  155  Cal.  638,  103  Pac.  341.) 

The  power  of  appointment  of  probation  officers  vested  by 
the  Juvenile  Court  Law  (Stats.  1909,  p.  213)  in  the  superior 
court  in  the  exercise  of  its  jurisdiction  as  a  juvenile  court  is 
not  unconstitutional  as  vesting  an  executive  function  in  judi- 
cial officers.     (Nicholl  v.  Koster,  157  Cal.  416,  108  Pac.  302.) 

The  state  dental  law  does  not  confer  upon  the  board  of 
dental  examiners  judicial  functions  by  giving  it  authority  to 
indorse  reputable  dental  colleges.  (Ex  parte  Whitley,  144  Cal. 
167,  77  Pac.  879.) 

An  act  providing  that  the  court  may  prescribe  by  rule  what 
shall  be  deemed  a  waiver  of  a  jury  trial  is  in  violation  of  this 
section.     (Exline  v.  Smith,  5  Cal.  112.) 

The  judiciary  has  power  to  examine  into  the  action  of  the 
executive  in  surrendering  a  fugitive  from  justice.  (In  re  Man- 
chester, 5  Cal.  237.) 

The  legislature  cannot  confer  upon  the  county  judge  power 
to  call  an  election.      (Dickey  v.  Hurlburt,  5  Cal.  343.) 

An  act  conferring  upon  the  county  court  power  of  incorporat- 
ing towns  is  void.     (People  v.  Nevada,  6  Cal.  143.) 

The  assessment  of  taxes  is  not  a  judicial,  but  a  legislative, 
function.     (Hardenburgh  v.  Kidd,  10  Cal.  402.) 


83  CONSTITUTION  OF  1879.         Art.  Ill,  §  1 

The  duties  of  a  judge  in  a  proceeding  to  condemn  land  are 
judicial.     (Gilmer  v.  Lime  Point,  18  Cal.  229.) 

The  legislature  may  declare  the  mayor  of  a  city  to  be  ex 
officio  a  justice  of  the  peace.     (Uridas  v.  Morrill,  22  Cal.  473.) 

The  chief  justice  of  the  supreme  court  is  prohibited  by  this 
section  from  exercising  the  functions  aud  duties  of  trustee  of 
the  state  library.  (People  v.  Sanderson,  30  Cal.  160.  But  see 
People  V.  Provines,  34  Cal.  520.) 

This  section  does  not  prohibit  a  police  judge  of  a  city  from 
performing  the  duties  of  a.  police  commissioner.  (People  v. 
Provines,  34  Cal.  520.) 

The  legislature  may  invest  judicial  officers  with  power  to 
punish  for  contempt.  (Crocker  v.  Conrey,  140  Cal.  213,  73 
Pac.   10t)6. 

The  legislature  cannot  invest  ministerial  officers  with  the 
power  to  punish  individuals  by  fine  and  imprisonment.  (Burns 
V.  Superior  Court,  140  Cal.  1,  73  Pac.  597.) 

The  power  to  remove  a  public  officer  for  cause  is  not  judi- 
cial in  its  character.  (Matter  of  Carter,  141  Cal.  316,  74  Pac. 
&97.) 

Executive  department. — The  power  of  appointment  to  office 
is  not  essentially  an  executive  function,  within  the  meaning 
of  this  section;  and  such  power  may  be  exercised  by  the  mem- 
bers of  the  legislature.  (People  v.  Freeman,  80  Cal.  233,  13 
Am.  St.  Rep.  122,  22  Pac.  173;  People  v.  Langdon,  8  Cal.  1.) 

The  power  to  levy  a  tax  is  purely  legislative,  and  cannot  be 
delegated  to  the  county  superintendent  of  schools,  who  is  an 
executive  officer.  (McCabe  v.  Carpenter,  102  Cal.  469,  36  Pac. 
836.) 

A  law  requiring  the  auditor's  certificate  that  there  is  suffi- 
cient money  in  the  treasury  before  au  appropriation  is-  made 
is  valid,  and  does  not  vest  judicial  functions  in  a  ministerial 
officer.  (Higgins  v.  San  Diego  Water  Co.,  118  Cal.  524,  45  Pac. 
824,  50  Pac.  670;  Pollok  v.  San  Diego,  118  Cal.  593,  50  Pac. 
769.) 

A  law  conferring  power  upon  city  trustees  to  remove  a  munic- 
ipal officer  is  valid.  (Croly  v.  Sacramento,  119  Cal.  229,  51 
Pac.  323.) 

An  act  giving  to  horticultural  commissioners  power  to  deter- 
mine whether  any  particular  jdaee  is  a  nuisance,  because  in- 
fected with  insect  pests,  does  not  confer  judicial  power  on  such 


Art.  Ill,  §  1         CONSTITUTION  OF  1879.  84 

commissioners.     (Los  Angeles  v.  Spencer,  126  Cal.  670,  77  Am. 
St.  Bep.  217,  59  Pac.  202.) 

A  law  authorizing  the  high  school  board  to  furnish  the  super- 
visors with  an  estimate  of  the  amount  of  the  tax  required,  but 
leaving  it  to  the  supervisors  to  fix  the  tax,  is  not  invalid  as 
delegating  legislative  power  to'  an  executive  oflficer.  (People 
V.  Lodi  High  School  Dist.,  124  Cal.  694,  67  Pac.  660.  McCabe 
V.  Carpenter,  102  Cal.  469,  36  Pac.  836,  distinguished.) 


85  CONSTITUTION   OF   1879. 

ARTICLE  IV. 

LEGISLATIVE  DEPARTMENT. 

§  1.  Senate  and  assembly,  and  enacting  clause — Initiative  and 
referendum.  • 

§     2.     Sessions  of  legislature, 

§     3.     Election  and  term  of  assemblymen. 

§     4.     Election  and  term  of  senators. 

§     5.     Number  and  classes  of  senators. 

§     6.     Senatorial  and  legislative  districts. 

§     7.     Organization  of  legislature. 

§     8.     What  number  constitutes  a  quorum. 

§     9.     Rules  for  their  government — Expulsions. 

§  10.     Each  house  to  keep  a  journal. 

§  11.     Privilege  of  members. 

§  12.     Vacancies,  how  filled. 

§  13.     Open  doors  and  secret  sessions. 

§  14.     Adjournment,  how  long  and  where  to. 

§  15.     Origin  and  passage  of  bills. 

§  16.     Approval  and  return  of  bills — Passage  over  veto. 

§  17.     Impeachments,  presentment  and  trial  of. 

§  18.     What  officers  liable  to  impeachment — Judgment  on. 

§  19.     Member  ineligible  to  office  created  during  the  term. 

§  20.     Who  ineligible  to  office  under  state  government — Proviso. 

§  21.     Embezzlement  or  defalcation — Penalty  for. 

§  22.  Public  moneys  and  accounts — Statement  of  receipts  and 
expenditures  —  Panama-Pacific  International  Exposi- 
tion, 

§  23.     Compensation  not  to  be  increased  during  term. 

§  23a.  Officers,  employees  and  attaches. 

§  24.     Title  of  laws — Revision  and  amendment — Publication  of. 

§  2.1.     Local  and  special  laws  prohibited. 

§  25J.  Fish  and  game  districts. 


Art.  IV,  §  1         CONSTITUTION  OP  1879.  86 

§  26.  Lotteries  prohibited — Purchase  and  sale  of  shares  of 
stock  to  be  regulated. 

§  27.  Congressional  and  senatorial  districts. 

§  28.  Elections  by  legislature  to  be  viva  voce. 

§  29.  General  appropriation  bill,  what  to  contain. 

§  30.  Eestriction  on  appropriations  and  grants  of  aid. 

§  31.  Credit  of  state  or  municipalities  not  to  be  loaned. 

§  32.  Extra  compensation  to  officers  forbidden. 

§  33.  Charges  of  gas  and  telegraph  corporations  to  be  regu- 
lated. 

§  34.  Special  appropriation  bill,  restriction  as  to. 

§  35.  Lobbying  defined — Punishment  for. 

§  36.  State  highways. 

Senate  and  assembly,  and  enacting  clause — Initiative 
and  referendum. 

Section  1.  The  legislative  power  of  this  state  shall 
be  vested  in  a  senate  and  assembly  which  shall  be  des- 
ignated "The  legislature  of  the  State  of  California," 
but  the  people  reserve  to  themselves  the  power  to  pro- 
pose laws  and  amendments  to  the  constitution,  and  to 
adopt  or  reject  the  same,  at  the  polls  independent  of 
the  legislature,  and  also  reserve  the  power,  at  their  own 
option,  to  so  adopt  or  reject  any  act,  or  section  or  part 
of  any  act,  passed  by  the  legislature.  The  enacting 
clause  of  every  law  shall  be  "The  people  of  the  State 
of  California  do  enact  as  follows:". 

The  first  power  reserved  to  the  people  shall  be  known 
as  the  initiative.  Upon  the  presentation  to  the  secre- 
tary of  state  of  a  petition  certified  as  herein  provided  to 


87  CONSTITUTION  OF  1879.  Art.  IV,  §  1 

have  been  signed  by  qualified  electors,  equal  in  number 
to  eight  per  cent  of  all  the  votes  cast  for  all  candidates 
for  governor  at  the  last  preceding  general  election,  at 
which  a  governor  was  elected,  proposing  a  law  or  amend- 
ment to  the  constitution,  set  forth  in  full  in  said  peti- 
tion, the  secretary  of  state  shall  submit  the  said  pro- 
posed law  or  amendment  to  the  constitution  to  the  elec- 
tors at  the  next  succeeding  general  election  occurring 
subsequent  to  ninety  days  after  the  presentation  afore- 
said of  said  petition,  or  at  any  special  election  called  by 
the  governor  in  his  discretion  prior  to  such  general  elec- 
tion. All  such  initiative  petitions  shall  have  printed 
across  the  top  thereof  in  twelve  point  black-face  type 
the  following:  "Initiative  measure  to  be  submitted  di- 
rectly to  the  electors." 

Upon  the  presentation  to  the  secretary  of  state,  at 
any  time  not  less  than  ten  days  before  the  commence- 
ment of  any  regular  session  of  the  legislature,  of  a  peti- 
tion certified  as  herein  provided  to  have  been  signed 
by  qualified  electors  of  the  state  equal  in  number  to 
five  per  cent  of  all  the  votes  cast  for  all  candidates  for 
governor  at  the  last  preceding  general  election,  at  which 
a  governor  was  elected,  proposing  a  law  set  forth  in  full 
in  said  petition,  the  secretary  of  state  shall  transmit  the 
same  to  the  legislature  as  soon  as  it  convenes  and  organ- 
izes. The  law  proposed  by  such  petition  shall  be  either 
enacted  or  rejected  without  change  or  amendment  by 
the  legislature,  within  forty  days  from  the  time  it  is 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  89 

received  by  the  legislature.  If  any  law  proposed  by 
such  petition  shall  be  enacted  by  the  legislature  it  shall 
be  subject  to  referendum,  as  hereinafter  provided.  If 
any  law  so  petitioned  for  be  rejected,  or  if  no  action  is 
taken  upon  it  by  the  legislature  within  said  forty  days, 
the  secretary  of  state  shall  submit  it  to  the  people  for 
approval  or  rejection  at  the  next  ensuing  general  elec- 
tion. The  legislature  may  reject  any  measure  so  pro- 
posed by  initiative  petition  and  propose  a  different  one 
on  the  same  subject  by  a  yea  and  nay  vote  upon  sepa- 
rate roll-call,  and  in  such  event  both  measures  shall  be 
submitted  by  the  secretary  of  state  to  the  electors  for 
approval  or  rejection  at  the  next  ensuing  general  elec- 
tion or  at  a  prior  special  election  called  by  the  gov- 
ernor, in  his  discretion,  for  such  purpose.  All  said  ini- 
tiative petitions  last  above  described  shall  have  printed 
in  twelve  point  black-face  type  the  following:  "Initia- 
tive measure  to  be  presented  to  the  legislature." 

The  second  power  reserved  to  the  people  shall  be 
known  as  the  referendum.  No  act  passed  by  the  legis- 
lature shall  go  into  effect  until  ninety  days  after  the 
final  adjournment  of  the  session  of  the  legislature  which 
passed  such  act,  except  acts  calling  elections,  acts  pro- 
viding for  tax  levies  or  appropriations  for  the  usual 
current  expenses  of  the  state,   and  urgency  measures 


necessary  for  the  immediate  preservation  of  the  public 
peace,  health  or  safety,  passed  by  a  two-thirds  vote  of 
all  the  members  elected  to  each  house.     Whenever  it  is 


89  CONSTITUTION  OF  1879.         Art.  IV,  §  1 

deemed  necessary  for  the  immediate  preservation  of  the 
public  peace,  health  or  safety  that  a  law  shall  go  into 
immediate  effect,  a  statement  of  the  facts  constituting 
such  necessity  shall  be  set  forth  in  one  section  of  the  act, 
which  section  shall  be  passed  only  upon  a  yea  and  nay 
vote,  upon  a  separate  roll-call  thereon ;  provided,  how- 
ever, that  no  measure  creating  or  abolishing  any  office 
or  changing  the  salary,  term  or  duties  of  any  officer,  or 
granting  any  franchise  or  special  privilege,  or  creating 
any  vested  right  or  interest,  shall  be  construed  to  be 
an  urgency  measure.  Any  law  so  passed  by  the  legis- 
lature and  declared  to  be  an  urgency  measure  shall  go 
into  immediate  effect. 

Upon  the  presentation  to  the  secretary  of  state  within 
ninety  days  after  the  final  adjournment  of  the  legisla- 
ture of  a  petition  certified  as  herein  provided,  to  have 
been  signed  by  qualified  electors  equal  in  number  to  five 
per  cent  of  all  the  votes  cast  for  all  candidates  for  gov- 
ernor at  the  last  preceding  general  election  at  which  a 
governor  was  elected,  asking  that  any  act  or  section  or 
part  of  any  act  of  the  legislature,  be  submitted  to  the 
electors  for  their  approval  or  rejection,  the  secretary  of 
state  shall  submit  to  the  electors  for  their  approval  or 
rejection,  such  act,  or  section  or  part  of  such  act,  at  the 
next  succeeding  general  election  occurring  at  any  time 
subsequent  to  thirty  days  after  the  filing  of  said  peti- 
tion or  at  any  special  election  which  may  be  called  by 
the  governor,  in  his  discretion,  prior  to  such  regular 


Art.  IV,  §  1         CONSTITUTION  OF  1879.  90 

election,  and  no  snch  act  or  section  or  part  of  such  act 
shall  go  into  effect  until  and  unless  approved  by  a 
majority  of  the  qualified  electors  voting  thereon ;  but  if 
a  referendum  petition  is  filed  against  any  section  or  part 
of  any  act  the  remainder  of  such  act  shall  not  be  delayed 
from  going  into  effect. 

Any  act,  law  or  amendment  to  the  constitution  sub- 
mitted to  the  people  by  either  initiative  or  referendum 
petition  and  approved  by  a  majority  of  the  votes  cast 
thereon,  at  any  election,  shall  take  effect  five  days  after 
the  date  of  the  official  declaration  of  the  vote  by  the  sec- 
retary of  state.  No  act,  law  or  amendment  to  the  con- 
stitution, initiated  or  adopted  by  the  people,  shall  be 
subject  to  the  veto  power  of  the  governor,  and  no  act, 
law  or  amendment  to  the  constitution,  adopted  by  the 
people  at  the  polls  under  the  initiative  provisions  of  this 
section,  shall  be  amended  or  repealed  except  by  a  vote 
of  the  electors,  unless  otherwise  provided  in  said  initia- 
tive measure;  but  acts  and  laws  adopted  by  the  people 
under  the  referendum  provisions  of  this  section  may  be 
amended  by  the  legislature  at  any  subsequent  session 
thereof.  If  any  provision  or  provisions  of  two  or  more 
measures,  approved  by  the  electors  at  the  same  election, 
conflict,  the  provision  or  provisions  of  the  measure  re- 
ceiving the  highest  affirmative  vote  shall  prevail.  Until 
otherwise  provided  by  law,  all  measures  submitted  to  a 
vote  of  the  electors,  under  the  provisions  of  this  section, 
shall  be  printed,  and  together  with  arguments  for  and 


91  CONSTITUTION  OF  1879.         Art.  IV,  §  1 

against  each  such  measure  by  the  proponents  and  oi')po- 
nents  thereof,  shall  be  mailed  to  each  elector  in  the  same 
manner  as  now  provided  by  law  as  to  amendments  to 
the  constitution,  proposed  by  the  legislature;  and  the 
persons  to  prepare  and  present  such  arguments  shall, 
until  otherwise  provided  by  law,  be  selected  by  the  pre- 
siding officer  of  the  senate. 

If  for  any  reason  any  initiative  or  referendum  meas- 
ure, proposed  by  petition  as  herein  provided,  be  not  sub- 
mitted at  the  election  specified  in  this  section,  such 
failure  shall  not  prevent  its  submission  at  a  succeeding 
general  election,  and  no  law  or  amendment  to  the  con- 
stitution, proposed  by  the  legislature,  shall  be  submitted 
at  any  election  unless  at  the  same  election  there  shall  be 
submitted  all  measures  proposed  by  petition  of  the  elec- 
tors, if  any  be  so  proposed,  as  herein  provided. 

Any  initiative  or  referendum  petition  may  be  pre- 
sented in  sections,  but  each  section  shall  contain  a  full 
and  correct  copy  of  the  title  and  text  of  the  proposed 
measure.  Each  signer  shall  add  to  his  signature  his 
place  of  residence,  giving  the  street  and  number  if  such 
exist.  His  election  precinct  shall  also  appear  on  the 
paper  after  his  name.  The  number  of  signatures  at- 
tached to  each  section  shall  be  at  the  pleasure  of  the 
person  soliciting  signatures  to  the  same.  Any  qualified 
elector  of  the  state  shall  be  competent  to  solicit  said 
signatures  within  the  county  or  city  and  county  of  which 
he  is  an  elector.     Each  section  of  the  petition  shall  bear 


Art.  IV,  §  1         CONSTITUTION  OF  1879.  92 

the  name  of  the  county  or  city  and  county  in  which  it 
is  circulated,  and  only  qualified  electors  of  such  county 
or  city  and  county  shall  be  competent  to  sign  such 
section.  Each  section  shall  have  attached  thereto  the 
affidavit  of  the  person  soliciting  signatures  to  the  same, 
stating  his  own  qualifications  and  that  all  the  signatures 
to  the  attached  section  were  made  in  his  presence  and 
that  to  the  best  of  his  knowledge  and  belief  each  signa- 
ture to  the  section  is  the  genuine  signature  of  the  per- 
son whose  name  it  purports  to  be,  and  no  other  affidavit 
thereto  shall  be  required.  The  affidavit  of  any  person 
soliciting  signatures  hereunder  shall  be  verified  free  of 
charge  by  any  officer  authorized  to  administer  oaths. 
Such  petitions  so  verified  shall  be  prima  facie  evidence 
that  the  signatures  thereon  are  genuine  and  that  the 
persons  signing  the  same  are  qualified  electors.  Unless 
and  until  it  be  otherwise  proven  upon  official  investi- 
gation, it  shall  be  presumed  that  the  petition  presented 
contains  the  signatures  of  the  requisite  number  of 
qualified  electors. 

Each  section  of  the  petition  shall  be  filed  with  the 
clerk  or  registrar  of  voters  of  the  county  or  city  and 
county  in  which  it  was  circulated,  but  all  said  sections 
circulated  in  any  county  or  city  and  county  shall  be 
filed  at  the  same  time.  Within  twenty  days  after 
the  filing  of  such  petition  in  his  office  the  said  clerk, 
or  registrar  of  voters,  shall  determine  from  the  rec- 
ords of  registration  what  number  of  qualified  electors 


93  CONSTITUTION  OF  1879.         Art.  IV,  §  1 

have  signed  the  same,  and  if  necessary  the  board  of 
supervisors  shall  allow  said  clerk  or  registrar  addi- 
tional assistants  for  the  purpose  of  examining  such 
petition  and  provide  for  their  compensation.  The  said 
clerk  or  registrar,  upon  the  completion  of  such  exami- 
nation, shall  forthwith  attach  to  said  petition,  except 
the  signatures  thereto  appended,  his  certificate,  prop- 
erly dated,  showing  the  result  of  said  examination  and 
shall  forthwith  transmit  said  petition,  together  with 
his  said  certificate,  to  the  secretary  of  state  and  also 
file  a  copy  of  said  certificate  in  his  office.  Within 
forty  days  from  the  transmission  of  the  said  petition 
and  certificate  by  the  clerk  or  registrar  to  the  secre- 
tary of  state,  a  supplemental  petition  identical  with 
the  original  as  to  the  body  of  the  petition  but  con- 
taining supplemental  names,  may  be  filed  with  the  clerk 
or  registrar  of  voters,  as  aforesaid.  Tlie  clerk  or  reg- 
istrar of  voters  shall  within  ten  days  after  the  filing 
of  such  supplemental  petition  make  the  examination 
thereof,  as  of  the  original  petition,  and  upon  the  com- 
pletion of  such  examination  shall  forthwith  attach  to 
said  petition  his  certificate,  properly  dated,  showing 
the  result  of  said  examination,  and  shall  forthwith 
transmit  a  copy  of  said  supplemental  petition,  except 
the  signatures  thereto  appended,  together  with  his  cer- 
tificate, to  the  secretary  of  state. 

When   the   secretary    of    state    shall    have    received 
from  one  or  more  county  clerks  or  registrars  of  voters 


Art.  IV,  §  1         CONSTITUTION  OF  1879.  94 

a  petition  certified  as  herein  provided  to  have  been 
signed  by  the  requisite  number  of  qualified  electors, 
he  shall  forthwith  transmit  to  the  county  clerk  or  reg- 
istrar of  voters  of  every  county  or  city  and  county 
in  the  state  his  certificate  showing  such  fact.  A  pe- 
tition shall  be  deemed  to  be  filed  with  the  secretary 
of  state  upon  the  date  of  the  receipt  by  him  of  a  cer- 
tificate or  certificates  showing  said  petition  to  be  signed 
by  the  requisite  number  of  electors  of  the  state.  Any 
county  clerk  or  registrar  of  voters  shall,  upon  receipt 
of  such  copy,  file  the  same  for  record  in  his  office. 
The  duties  herein  imposed  upon  the  clerk  or  registrar 
of  voters  shall  be  performed  by  such  registrar  of  voters 
in  all  cases  where  the  office  of  registrar  of  voters  exists. 
The  initiative  and  referendum  powers  of  the  people 
are  hereby  further  reserved  to  the  electors  of  each 
county,  city  and  county,  city  and  town  of  the  state, 
to  be  exercised  under  such  procedure  as  may  be  pro- 
vided by  law.  Until  otherwise  provided  by  law,  the 
legislative  body  of  any  such  county,  city  and  county, 
city  or  town  may  provide  for  the  manner  of  exercising 
the  initiative  and  referendum  powers  herein  reserved 
to  such  counties,  cities  and  counties,  cities  and  towns, 
but  shall  not  require  more  than  fifteen  per  eent  of 
the  electors  thereof  to  propose  any  initiative  measure 
nor  more  than  ten  per  cent  of  the  electors  thereof  to 
order  the  referendum.  Nothing  contained  in  this  sec- 
tion shall  be  construed  as  affecting  or  limiting  the 


95  CONSTITUTION  OF  1879.         Art.  IV,  §  1 

present  or  future  powers  of  cities  or  cities  and  counties 
having  charters  adopted  under  the  provisions  of  sec- 
tion eight  of  article  eleven  of  this  constitution.  In 
the  submission  to  the  electors  of  any  measure  under 
this  section,  all  officers  shall  be  guided  by  the  general 
laws  of  this  state,  except  as  is  herein  otherwise  pro- 
vided. This  section  is  self-executing,  but  legislation 
may  be  enacted  to  facilitate  its  operation,  but  in  no 
way  limiting  or  restricting  either  the  provisions  of 
this  section  or  the  powers  herein  reserved.  (Amend- 
ment approved  October  10,  1911.) 

[ORIGINAL  SECTION.] 
Section  1.  The  legislative  power  of  this  state  shall  be  vested 
in  a  senate  and  assembly,  which  shall  be  designated  "The  Legis- 
lature of  the  State  of  California,"  and  the  enacting  clause  of 
every  law  shall  be  as  follows :  "The  People  of  the  State  of 
California,  represented  in  Senate  and  Assembly,  do  enact  as 
follows." 

LEGISLATIVE  POWER.— The  legislature  has  the  same  un- 
limited power  of  legislation  which  resides  in  the  British  parlia- 
ment, except  when  restrained  and  limited  either  by  express 
words  of  the  constitution  or  by  necessary  implication;  and  its 
power  cannot  be  restrained  by  any  unnecessary  implications. 
(Mitchell  v.  Winnek,  117  Cal.  520,  49  Pac.  579.) 

The  legislature  is  not  synonymous  with  the  law-making  power 
and  does  not  include  the  governor  except  as  applied  to  the  en- 
actment of  laws.  (Brooks  v.  Fischer,  79  Cal.  173,  21  Pac.  652, 
4  L.  R.  A.  429.) 

The  constitution  is  not  a  grant  of  power,  but  a  restriction 
upon  the  power  of  the  legislature,  and  the  legislature  has  the 
entire  legislative  power  of  the  state  not  prohibited  to  the  legis- 
lature or  conferred  upon  some  other  body.  (Sheehan  v.  Scott, 
145  Cal.  684,  79  Pac.  350.) 


Art.  IV,  §  1         CONSTITUTION  OP  1879.  96 

All  powers  of  any  of  the  departments  of  the  government,  not 
disposed  of  or  distributed  by  the  constitution,  are  left  at  the 
disposal  of  the  legislature.     (Koss  v.  Whitman,  6  Cal.  361.) 

The  legislature  is  not  controlled  as  to  its  powers  or  the  mode 
of  their  exercise  otherwise  than  by  the  restrictions  of  the  con- 
stitution. (Hobart  v.  Supervisors,  17  Cal.  23;  People  v.  Sey- 
mour, 16  Cal.  332,  76  Am.  Dec.  521.) 

The  legislature  represents  the  independent  sovereignty  of  the 
people  of  the  state,  and  is  supreme  and  unlimited  in  all  legit- 
imate subject  matters  of  legislation,  and  is  controlled  only  by 
such  restrictions  as  are  imposed  by  the  organic  law  of  the  state. 
(Beals  V.  Amador  Co.,  .35  Cal.  624.) 

The  legislature  may  accept  a  private  bounty  for  the  benefit 
of  the  state,  although  such  bounty  influences  legislative  action. 
(People  V.  Bigler,  5  Cal.  23.) 

The  legislature  has  full  power  to  alienate  the  tide  lands  of 
the  state,  subject  only  to  the  right  of  the  public  to  use  them 
for  the  purposes  of  navigation  and  fishing.  (Oakland  v.  Oak- 
land Water  Front  Co.,  118  Cal.  160,  50  Pac,  277.) 

The  legislature  may  determine  whether  or  not  a  certain  im- 
provement is  of  a  public  nature,  and  the  courts  will  not  inter- 
fere with  this  determination,  unless  it  is  palpably  and  entirely 
for  private  benefit.  (In  re  Madera  Irr.  Dist.,  92  Cal.  296,  27 
Am.  St.  Rep.  106,  28  Pac.  272,  14  L.  R.  A.  755;  Hagar  v.  Super- 
visors, 47  Cal.  222.) 

As  to  the  validity  of  acts  contrary  to  natural  justice,  see 
People  V.  Bigler,  5  Cal.  23. 

Exercise  of  power. — A  legislative  assembly  has  all  the  powers 
and  privileges  which  ar«  necessary  to  the  proper  exercise,  in 
all  respects,  of  its  appropriate  functions.  (Ex  parte  McCarthy, 
29  Cal.  395.) 

The  senate  has  power  to  summon  witnesses  to  testify  con- 
cerning a  charge  of  bribery  brought  against  its  members.  (Ex 
parte  McCarthy,  29  Cal.  395.) 

The  legislature  may  compel  the  attendance  of  all  persons 
within  the  limits  of  their  constituency,  as  witnesses,  in  regard 
to  subjects  on  which  they  have  power  to  act  and  into  which 
they  institute  an  investigation.  (Ex  parte  McCarthy,  29  Cal. 
395.) 


97  CONSTITUTION  OP  1879.         Art.  IV,  §  1 

Witnesses  before  either  branch  of  the  legislature  may  be 
compelled  to  testify  by  process  of  contempt.  (Ex  parte  Mc- 
Carthy, 29  Cal.  395.) 

Delegation  of  power. — The  power  to  make  laws  cannot  be 
delegated  by  the  legislature  to  the  people  of  the  state,  or  to 
any  portion  of  the  people.  (Ex  parte  Wall,  48  Cal.  279,  17 
Am.  Eep.  425.) 

The  legislature  has  no  power  to  refer  a  statute  to  the  people 
to  decide  by  a  popular  vote  whether  it  shall  go  into  effect. 
(Ex  parte  Wall,  48  Cal.  279,  17  Am.  Eep.  425.) 

As  to  whether  the  legislature  may  confer  upon  the  voters  of 
a  county  directly  the  power  to  enact  laws,  questioned  but  not 
decided.  (Ex  parte  Anderson,  134  Cal.  69,  86  Am.  St.  Eep. 
236,  66  Pac.  194.) 

There  cannot  be  two  equal,  co-ordinate  law-making  powers 
within  the  same  territory,  each  existing  without  any  restric- 
tions the  one  upon  the  other;  and,  therefore,  a  law  empower- 
ing the  voters  of  a  county  and  also  the  board  of  supervisors 
of  the  county  to  enact  and  repeal  laws  on  the  same  subjects 
is  invalid.  (Ex  parte  Anderson,  134  Cal.  69,  86  Am.  St.  Eep. 
236,  66  Pac.  194.) 

The  legislature  cannot  delegate  its  general  legislative  func- 
tions, but  it  can  authorize  others  to  do  those  things  which  it 
cannot  understandingly  or  advantageously  do  itself.  Thus,  it 
can  delegate  to  the  voters  of  a  county  power  to  select  a  county 
seat.     (Upham  v.  Supervisors,  8  Cal.  378.) 

Laws  may  be  either  absolute,  dependent  upon  no  contingency, 
or  subject  to  conditions.  They  may  take  effect  only  upon  the 
ha]>pening  of  events  which  are  future  and  uncertain,  and  among 
others,  the  voluntary  act  of  the  parties  upon  whom  they  are 
designed  to  operate.     (Blanding  v.  Burr,  13  Cal.  343.) 

Tluis,  a  provision  of  an  act  that  the  question  of  the  issuance 
of  bonds  shall  be  submitted  to  the  people  is  valid.  (Blanding 
v.  Burr,  13  Cal.  343.) 

But  while  a  statute  may  be  conditional,  so  that  its  taking 
effect  may  depend  upon  a  subsequent  event  which  may  be 
named  in  it,  yet  this  event  must  be  one  which  shall  produce 
such  a  change  of  circumstances  that  the  law-makers,  in  their 
own  judgment,  can  declare  it  wise  that  the  law  shall  take  effect 
Constitution — 7 


Art.  IV,  §  1         CONSTITUTION  OF  1879.  98 

■when  the  event  shall  occur.  (Ex  parte  Wall,  48  Cal.  279,  17 
Am.  Eep.  425.) 

A  county  ordinance  prohibiting  the  granting  of  a  liquor 
license  in  any  precinct  in  which  a  majority  of  the  electors  voted 
against  the  granting  of  liquor  licenses  therein,  is  not  a  delega- 
tion of  legislative  functions.  (Denton  v.  Vann,  8  Cal.  App.  677, 
97  Pac.  675.) 

The  grant  of  power  comprehends  the  exercise  of  all  the  sov- 
ereign authority  of  the  state  in  matters  which  are  properly  the 
subject  of  legislation.  (People  v.  Nye,  9  Cal.  App.  14S,  98  Pac. 
241.) 

A  common  council  has  no  power  to  delegate  its  functions  and 
in  the  absence  of  special  authority  has  no  power  to  submit  a 
question  to  the  electors  for  the  purpose  of  ascertaining  their 
desires.     (Galindo  v.  Walter,  8  Cal.  App.  234,  96  Pac.  505.) 

The  act  regulating  the  practice  of  medicine  and  surgery  does 
not  delegate  legislative  functions.  (Arwine  v.  Board  of  Medical 
Examiners,  151  Cal.  499,  91  Pac.  319.) 

A  freeholders'  charter  may  incorporate  the  procedure  known 
as  the  initiative  and  referendum  so  as  to  authorize  the  majority 
of  the  electors  to  participate  directly  in  the  enactment  of  local 
laws.  (In  re  Pfahler,  150  Cal.  71,  88  Pac.  270,  11  Ann.  Cas. 
911.) 

An  act  authorizing  the  submission  to  the  people  of  the  ques- 
tion of  a  tax  for  an  improvement  is  valid.  (Pattison  v.  Yuba 
Co.,  13  Cal.  175.) 

The  act  providing  for  the  annexation  of  territory  to  incor- 
porated towns  does  not,  in  its  provision  for  a  vote  b\'  the 
people,  comprise  any  unwarranted  delegation  of  legislative 
power.     (People  v.  Town  of  Ontario,  14S  Cal.  C25,  84  Pac.  205.) 

The  provision  of  the  act  creating  the  board  of  medical  ex- 
aminers permitting  the  board  to  revoke  a  license  for  "adver- 
tising of  medical  business  in  which  grossly  improbable  state- 
ments are  made"  is  void.  (Hewitt  v.  Board,  148  Cal.  590,  113 
Am.  St.  Eep.  315,  84  Pac.  39,  3  L.  E.  A.,  N.  S.,  896.) 

The  legislature  may  delegate  to  the  legislative  authorities 
power  to  determine  what  shall  constitute  a  public  offense. 
(Denninger  v.  Eecorder's  Court,  145  Cal.  029,  79  Pac.  360.) 

The  legislature  may  make  a  local  law  depend  for  effect  upon 
the  will  of  all  the  voters  of  a  locality,  or  of  a  majority,  or  upon 
the  assent  of  a  few,  as  in  the  case  of  removal  of  capitols,  court- 


99  CONSTITUTION  OP  1879.         Art.  IV,  §  1 

houses,  etc.,  upon  donations  or  other  advantages  received. 
(Hobart  v.  Supervisors,  17  Cal.  23.  But  see  Dickey  v.  Hurl- 
burt,  5  Cal.  343,  by  Heydenfeldt,  J.) 

The  legislature  cannot  delegate  its  power  to  fix  water  rates. 
(Spring  Valley  W.  W.  v.  San  Francisco,  61  Cal.  3.) 

An  act  which  leaves  it  permissive  with  a  board  whether  or 
not  the  work  shall  be  done,  and  when  and  where  taxes  shall 
be  levied  for  the  same,  is  an  unlawful  delegation  of  legislative 
functions.  (Per  McKee,  J.,  in  People  v.  Parks,  58  Cal.  624, 
641.) 

An  act  authorizing  a  commissioner  to  require  factories  and 
workshops  to  provide  mechanical  contrivances  to  prevent  the 
inhaling  of  dust,  filaments  and  gases,  when  it  appears  to  him 
that  it  can  be  to  a  great  extent  prevented  by  such  contrivances, 
is  an  unlawful  delegation  of  legislative  functions.  (Schaezlein 
V.  Cabaniss,  135  Cal.  466,  87  Am.  St.  Rep.  122,  67  Pae.  755,  56 
L.  R.  A.  733.) 

An  ordinance  prohibiting  the  alteration  or  repair  of  any 
wooden  building  within  certain  designated  fire  limits,  without 
permission  of  the  fire  wardens  and  approval  of  a  majority  of 
the  committee  on  fire  department  and  the  mayor,  is  not  an  un- 
lawful delegation  of  legislative  functions.  (Ex  parte  Fiske,  72 
Cal.  125,  13  Pac.  310.) 

An  act  providing  for  forming  the  county  of  Orange  out  of 
part  of  the  county  of  Los  Angeles,  upon  the  assent  of  two- 
thirds  of  the  qualified  electors  of  the  proposed  new  county,  is 
not  a  delegation  of  legislative  power.  (People  v.  McFadden, 
81  Cal.  489,  15  Am.  St.  Eep.  66,  22  Pac.  851.) 

Municipal  boards  can  delegate  only  duties  ministerial  in  char- 
acter, and  not  calling  for  the  exercise  of  discretion.  (Ilolley 
V.  Orange  Co.,  106  Cal.  420,  39  Pac.  790.) 

Powers  conferred  upon  a  municipal  corporation,  involving  the 
exercise  of  judgment  and  discretion,  are  in  the  nature  of  public 
trusts,  and  cannot  be  delegated.  (Scollay  v.  Butte  Co.,  67  Cal. 
249,  7  Pac.  661.) 

The  legislature  had  power  to  enact  the  act  of  1891,  to  estab- 
lish law  libraries,  and  to  provide  that  counties  might  come 
witliin  the  provisions  of  the  act,  as  the  boards  of  supervisor;* 
of  the  respective  counties  might  determine.  (Board  v.  Super- 
visors, 99  Cal.  571,  34  Pac.  244.) 


Art.  IV,  §  1         CONSTITUTION  OP  1879.  100 

A  provision  of  the  County  Government  Act  of  1883,  that  the 
boards  of  supervisors  of  counties  of  certain  designated  classes 
may  allow  county  officers  a  deputy  whenever  in  the  opinion  of 
such  board  the  salary  of  such  officers  is  insufficient,  is  an  unlaw- 
ful delegation  of  legislative  power.  (Dougherty  v.  Austin,  94 
Cal.  601,  28  Pac.  834,  29  Pac.  1092,  16  L.  E.  A.  161;  People  v. 
Johnson,  95  Cal.  471,  31  Pac.  611.) 

An  act  providing  that  a  board  of  harbor  commissioners  may 
impose  penalties  not  exceeding  five  hundred  dollars  for  the  vio- 
lation of  the  rules  made  by  them  is  a  delegation  of  legislative 
functions.  (Harbor  Commrs.  v.  Eedwood  Co.,  88  Cal.  491,  22 
Am.  St.  Kep.  321,  26  Pac.  375.) 

The  legislature  cannot  delegate  to  a  board  of  medical  exam- 
iners the  power  of  declaring  what  acts  shall  constitute  a  mis- 
demeanor. (Per  Paterson,  J.,  in  Ex  parte  McNulty,  77  Cal. 
164,  11  Am.  St.  Eep.  257,  19  Pac.  237.) 

An  act  authorizing  a  commission  to  make  certain  quarantine 
regulations,  and  declaring  that  a  violation  of  them  shall  be  a 
misdemeanor,  is  an  unlawful  delegation  of  legislative  power. 
(Ex  parte  Cox,  63  Cal.  21.) 

An  act  creating  a  state  board  of  equalization  and  providing 
that  such  board  shall  determine  the  rate  of  taxation,  is  not  an 
unlawful  delegation  of  legislative  power.  (Savings  etc.  Soc.  v. 
Austin,  46  Cal.  415.     But  see  Houghton  v,  Austin,  47  Cal.  646.) 

An  act  which  submits  to  a  popular  vote  of  the  electors  of  a 
county  the  question  whether  certain  territory  shall  be  annexed 
thereto  is  valid.     (People  v.  Nally,  49  Cal.  478.) 

Police  power. — The  legislature  cannot,  under  the  guise  of 
police  regulations,  enact  laws  not  pertaining  to  the  public  wel- 
fare, health  or  morals,  and  which  impose  onerous  and  unneces- 
sary burdens  upon  business  and  property.  (Ex  parte  Hayden, 
147  Cal.  649,  109  Am.  St.  Eep.  183,  82  Pac.  315;  Ex  parte  Drexel, 
147  Cal.  763,  82  Pac.  429,  3  Ann.  Cas.  878.) 

An  act  designed  to  obtain  for  people  of  a  certain  locality  an 
advantage  cannot  be  upheld  as  a  police  regulation.  (Hellman 
V.  Los  Angeles,  147  Cal.  653,  83  Pac.  313.) 

Police  regulations  are  not  unconstitutional  because  they  may 
incidentally  operate  to  deprive  individuals  of  their  property 
without  compensation,  nor  because  they  may  create  a  monopoly. 
(In  re  Zhizhuzza,  147  Cal.  328,  81  Pac.  955.) 


101  CONSTITUTION  OF  1879.  Art.  IV,  §  1 

An  act  forbidding  the  issuance  of  trading  stamps  and  coupons 
redeemable  in  "anything  unidentified  by  or  unselected  by  the 
purchaser  at  the  time  of  the  sale,"  is  unconstitutional.  (Ex 
parte  Drexel,  147  Cal.  763,  82  Pac.  429,  3  Ann.  Gas.  878.) 

An  act  requiring  all  fruit  shipped  to  be  stamped  with  a  state- 
ment truly  designating  the  county  and  immediate  locality  in 
which  such  fruit  is  grown  is  not  a  reasonable  exercise  of  the 
police  power.  (Ex  parte  Hayden,  147  Cal.  649,  109  Am.  St.  Kep. 
183,  82  Pac.  315.) 

The  police  power  will  not  authorize  the  state  to  take  private 
property  for  public  use  without  compensation  when  such  prop- 
erty can  be  condemned  and  paid  for.  (People  v.  Elk  River 
etc.  Co.,  107  Cal.  221,  48  Am.  St.  Rep.  125,  40  Pac.  531.) 

An  act  making  it  a  misdemeanor  to  keep  open  a  barber-shop 
on  Sundays  or  other  holidays  is  unreasonable.  (Ex  parte 
Jentzsch,  112  Cal.  468,  44  Pac.  803,  32  L.  R.  A.  664.) 

The  state  has  authority  to  regulate  fisheries  within  its 
borders,  and  may  provide  the  places  as  well  as  the  times  in 
which  fish  may  be  taken,  and  may  make  exclusive  grants  of 
fisheries  in  designated  waters,  (lleckman  v.  Swett,  107  Cal. 
276,  40  Pac.  420.) 

An  act  providing  for  a  bounty  on  coyote  scalps  comes  within 
the  purview  of  the  police  power.  (Ingram  v.  Colgan,  106  Cal. 
113,  46  Am.  St.  Rep.  221,  38  Pac.  315,  39  Pac.  437,  28  L.  R.  A. 
187.) 

A  law  making  it  a  felony  to  sell  intoxicating  liquor  to  an 
Indian  is  valid.  (People  v.  Bray,  105  Cal.  344,  38  Pac.  731, 
27  L.  R.  A.  158.) 

It  is  within  the  police  power  of  the  state  in  the  protection 
of  the  wild  game  of  the  state  to  prohibit  th6  sale  of  the  meat 
of  any  wild  game  within  the  state.  (Ex  parte  Maier,  103  Cal. 
476,  42  Am.   St.   Rep.  129,  37  Pac.  402.) 

It  is  not  competent  for  the  legislature  to  vest  in  an  adjoining 
proprietor  the  power  to  prevent  his  neighbor  from  building 
such  structure  on  his  own  land  as  he  pleases,  provided  it  is  not 
a  nuisance;  and  it  is  not  a  nuisance  merely  because  it  obstructs 
the  passage  of  light  and  air.  But  the  legislature  may  regulate 
the  erection  of  division  walls  on  the  division  line.  (Western 
etc.  Co.  v.  Knickerbocker,  103  Cal.  Ill,  37  Pac.  192.) 

An  act  to  prohibit  Chinese  persons  from  coming  into  the  state, 
and  prescribin^j  terms  and  conditions  ux^on  which  those  residing 


Art.  IV,  §  1         CONSTITUTION  OP  1879.  102 

in  the  state  sliall  be  permitted  to  remain  and  travel  tlicrein,  is 
void.      (Ex  parte  Ah  Cue,  101  Cal.  197,  35  Pae.  556.) 

The  act  of  1891,  permitting  tlie  organization  and  creation  of 
sanitary  districts,  is  within  tlje  police  piower  of  the  state. 
(Woodward  v.  Fruitvale  Sanitary  Dist.,  99  Cal.  554,  34  Pac. 
239.) 

An  act  forbidding  the  sale  of  lictuors  within  certain  distances 
of  certain  named  educational  and  reformatory  institutions  is  a 
valid  police  regulation.  (Ex  parte  McClain,  61  Cal.  436,  44 
Am.  Eep.  554.) 

It  is  within  the  police  power  of  the  state  to  authorize  the 
channel  of  a  river  to  be  turned  or  straightened.  (Green  v. 
Swift,  47  Cal.  536.) 

The  legislature  has  no  power  to  declare  that  a  physician  is 
guilty  of  unprofessional  conduct  in  advertising  himself  as  a 
specialist  in  certain  diseases,  and  punishable  as  for  a  misde- 
meanor. (Per  Thornton,  J.,  in  Ex  parte  McNulty,  77  Cal.  164, 
11  Am.  St.  Rep.  257,  19  Pac.  237.) 

The  legislature  has  power  to  organize  agricultural  societies. 
(People  V.  San  Joaquin  Valley  Agr.  Assn.,  151  Cal.  797,  91  Pac. 
740.) 

The  business  of  pawnbroker  is  the  subject  of  police  regula- 
tion. (Levinson  v.  Boas,  150  Cal.  185,  88  Pac.  825,  11  Ann. 
Cas.  661.) 

The  support  of  poor  and  destitute  persons  unable  to  care  for 
themselves  is  a  public  purpose,  clearly  within  the  general  legis- 
lative power.     (Board  v.  Nye,  8  Cal.  App.  527,  97  Pac.  208.) 

INITIATIVE  AND  REFERENDUM.— The  validity  of  the 
initiative  and  referendum  is  shortly  to  be  passed  upon  by  the 
supreme  court  of  the  United  States  in  the  case  of  Pacific  States 
Telegraph  and  Telephone  Co.  v.  State  of  Oregon.  It  would 
therefore  be  useless  to  express  any  opinion  on  the  subject,  but 
Mr.  Louis  Bartlett  has  prepared  for  the  Commonwealth  Club  of 
California  an  exhaustive  review  of  the  authorities  applicable  to 
the  question,  and  with  his  permission  and  the  permission  of  the 
club  that  review  is  here  set  forth: 
"To  the  Commonwealth  Club: 

"Gentlemen: — The  following  eases  discuss  'The  republican 
form  of  government  guaranteed  to  States  by  the  United  States 
Constitution.' 


103  CONSTITUTION  OP  1879.  Art.  IV,  §  1 

"1. 

"Luther  V.  Borden,  7  How,  1,  12  L.  Ed.  581. 

"This  involved  determining  which  State  government  was  in 
force  in  Khode  Island  in  1842 — the  old  charter  government  estab- 
lished when  Ehode  Island  was  an  English  colony,  or  a  new 
government  attempted  to  be  established  by  some  people  of  the 
(State,  acting  without  warrant  of  the  existing  law.  It  was  held 
that  'What  is  the  existing  government'  is  a  political  question, 
to  be  settled  by  the  political  branch  of  the  government;  and  in 
admitting  the  representatives  of  a  State  to  Congress,  the  latter 
necessarily  decides  that  the  form  of  government  is  republican; 
and  its  'decision  is  binding  on  every  other  department  of  the 
government  and  could  not  be  questioned  in  a  judicial  tribunal.' 

"The  question  of  what  is  a  republican  form  of  government  did 
not  arise  and  was  not  discussed. 

"2. 
"Minor  v.  Happersett,  21  Wallace,  175,  88  U.  S.  175,  23  L.  Ed. 

631. 

"This  was  an  action  against  a  registrar  of  voters  for  refusing 
to  register  a  woman — the  State  Constitution  providing  that 
'every  male  citizen  of  the  United  States  .  .  .  shall  be  entitled 
to  vote.'  It  was  held  that  the  right  to  vote  is  not  conferred 
upon  woman  by  the  guaranty  to  every  State  of  a  republican 
form  of  government. 

"  'The  guaranty  is  of  a  republican  form  of  government.  No 
particular  government  is  designated  as  republican,  neither  is  the 
exact  form  to  be  guaranteed,  in  any  manner  especially  desig- 
nated. Here,  as  in  other  parts  of  the  instrument,  we  are  com- 
pelled to  resort  elsewhere  to  ascertain  what  was  intended. 

"  'The  guaranty  necessarily  implies  a  duty  on  the  part  of  the 
States  themselves  to  provide  such  a  government.  All  the  States 
had  governments  when  the  Constitution  was  adopted.  In  all, 
the  people  participated  to  some  extent,  through  their  representa- 
tives elected  in  the  manner  specially  provided.  These  govern- 
ments the  Constitution  did  not  change.  They  were  accepted 
precisely  as  they  were,  and  it  is,  therefore,  to  be  presumed  that 
they  were  such  as  it  was  the  duty  of  the  States  to  provide. 
Thus  we  have  unmistakable  evidence   of  what  was  republican 


Art.  IV,  §  1  CONSTITUTION  OF  1879.  104 

in  form,  within  the  meaning  of  that  term  as  employed  in  the 
Constitution. 

"  'As  has  been  seen,  all  the  citizens  of  the  States  were  not  in- 
vested with  the  right  of  suffrage.  In  all,  saA^e  perliaps  New 
Jersey,  this  right  was  only  bestowed  upon  men,  and  not  upon 
all  of  them.  Under  these  circumstances  it  is  certainly  now  too 
late  to  contend  that  a  government  is  not  republican,  within  the 
meaning  of  this  guaranty  in  the  Constitution,  because  women 
are  not  made  voters.' 

"This  case  concerns  itself  with  the  classes  of  people  who  can 
participate  in  the  government  and  not  with  the  method  of  their 
action,  whether  direct  or  representative. 


"In  re  Pfahler,  150  Cal.  71, 

"The  question  was  as  to  the  constitutionality  of  a  police  regu- 
lation of  the  city  of  Los  Angeles,  adopted  as  an  ordinance  under 
the  initiative  provisions  of  the  charter: 

"Held  by  majority  of  the  court,  McFarland  dissenting,  that 
the  Federal  guaranty  of  a  republican  form  of  government  does 
not  prohibit  the  direct  exercise  of  legislative  power  by  the 
people  of  a  subdivision  of  a  State  in  strictly  local  affairs,  as 
this  system  existed  and  was  well  known  when  the  Constitution 
was  adopted.  'It  is  apparent  from  this  condition  of  affairs, 
existing  continuously  from  the  moment  of  the  adoption  of  the 
Constitution,  that,  if  there  is  anything  therein  inconsistent  with 
a  republican  form  of  government,  within  the  meaning  of  these 
words  as  used  in  the  Federal  Constitution,  the  constitutional 
guaranty  was  intended  to  apply  only  to  the  form  of  govern- 
ment for  the  State  at  large,  and  not  at  all  to  the  local  govern- 
ment prescribed  by  the  State  for  its  municipalities  and  other 
subdivisions.' 

"4. 
"Kadderly  v.  City  of  Portland,  44  Or.  118,  74  7ac.  710. 

"Held  that  the  provision  of  the  United  States  Constitution, 
guaranteeing  to  every  State  a  rei)ubliean  form  of  government 
does  not  prevent  a  State  constitution  from  |)roviding  for  the 
initiative  and  referendum  in  laws  of  state-wide  application. 
'The  initiative  and  referendum  amendment  does  not  abolish  or 
destroy   the   republican   form  of  government   or   substitute   an- 


105  CONSTITUTION  OF  1879.         Art.  IV,  §  1 

other  in  its  place.  The  representative  character  of  the  govern- 
ment still  remains.  The  people  simply  reserve  to  themselves  a 
larger  share  of  legislative  power,  but  they  have  not  overthrown 
the  republican  form  of  government  and  substituted  another  in 
its  place.' 

"5. 
"Kiernan  v.  City  of  Portland,  112  Pac.  402,  at  page  40i. 

"In   discussing   the    constitutional   guaranty    of   a   republican 
form  of  government,  the  court  said: 

"  'To  ascertain  whether  taking  from  the  Legislature  and  dele- 
gating to  the  municipalities  or  to  the  localities  affected,  local 
self-government,  or  a  right  to  enact,  maintain,  and  alter  their  " 
charters  as  the  Legislature  formerly  did,  and  whether  the  tak- 
ing from  the  Legislature  the  right  to  make  special  laws  upon 
the  subject  violates  this  provision  of  the  national  constitution 
makes  it  important  that  we  first  ascertain  what  is  meant  by  a 
republican  form  of  government.  It  is  an  expression  which  all 
assume  to  understand,  yet,  judging  from  the  many  unsuccessful 
attempts  of  eminent  statesmen  and  writers  to  give  it  a  clear 
meaning,  it  would  seem  the  phrase  is  not  susceptible  to  being 
given  a  precise  definition.  Especially  is  this  true  when  sought 
to  be  applied  to  the  constitution  of  different  States,  concerning 
which  Mr.  James  Madison,  a  member  of  the  constitutional  con- 
vention, said:  "...  If  we  resort  for  a  criterion  to  the  different 
principles  on  which  different  forms  of  government  are  estab- 
lished, we  may  define  a  republic  to  be,  or  may  at  least  bestow 
that  name  on,  a  government  which  derives  all  its  powers  directly 
or  indirectly  from  the  great  body  of  the  people,  and  is  adminis- 
tered by  persons  holding  their  office  during  pleasure  for  a  limited 
period  or  during  good  behavior.  It  is  essential  to  such  govern- 
ment that  it  be  derived  from  the  great  body  of  society  and  not 
from  any  inconsiderable  portion  of  a  favored  class  of  it.  .  .  .  " 
The  Federalist  (Hamilton  Ed.),  paper  39,  p.  301.  Another  and 
more  pointed  definition  appears  in  Chisholm  v.  Georgia,  2  Dall. 
419^457,  1  L.  Ed.  440,  by  Mr.  Justice  Wilson,  member  of  the 
constitutional  convention,  who,  but  a  short  time  after  the  adop- 
tion of  the  Federal  constitution,  in  adverting  to  what  is  meant 
by  a  republican  form  of  government,  remarked,  "As  a  citizen, 
1  know  the  government  of  that  State  (Georgia)  to  be  republi- 
can, and  my  short  definition  of  such  a  government — one  con- 
structed on  this  principle,  that  the  supreme  power  resides  in  the 


Art.  IV,  §  1         CONSTITUTION  OF  1879.  106 

body  of  the  people."  From  which  it  follows  that  the  converse 
must  be  true;  that  is  to  say,  any  government  in  which  the 
supreme  power  resides  with  the  people  is  republican  in  form. 
See,  also,  Mr.  Justice  Wilson's  remarks  to  the  same  effect  re- 
ported in  5  Ellicott's  Debates,  160. 

"  'Measured  in  the  light  of  the  above,  it  is  difficult  to  con- 
ceive of  any  system  of  law-making  coming  nearer  to  the  great 
body  of  the  people  of  the  entire  hitate,  or  by  those  comprising 
the  various  municipalities,  than  that  now  in  use  here,  and,  being 
so,  we  are  at  a  loss  to  understand  how  the  adoption  and  use 
of  this  system  can  be  held  a  departure  from  a  republican  form 
of  government.  It  was  to  escape  the  oppression  resulting  from 
governments  controlled  by  the  select  few,  so  often  ruling  under 
the  assumption  that  "might  makes  right,"  that  gave  birth  to 
republics.  Monarchical  rulers  refuse  to  recognize  their  ac- 
countability to  the  people  governed  by  them.  In  a  republic 
the  converse  is  the  rule.  The  tenure  of  office  may  be  for  a  short 
or  a  long  period,  or  even  for  life,  yet  those  in  office  are  at  all 
times  answerable,  either  directly  or  indirectly  to  the  people, 
and  in  proportion  to  their  responsibility  for  those  for  whom 
they  may  be  the  public  agents,  and  the  nearer  the  power  to 
enact  laws  and  control  public  servants  lies  with  the  great  body 
of  the  people,  the  more  nearly  does  a  government  take  unto 
itself  the  form  of  a  republic, — not  in  name  alone,  but  in  fact. 
From  this  it  follows  that  each  republic  may  differ  in  its  political 
system  or  in  the  political  machinery  by  which  it  moves,  but,  so 
long  as  the  ultimate  control  of  its  officials  and  affairs  of  state 
remain  in  its  citizens,  it  will  in  the  eye  of  all  republics  be  recog- 
nized as  a  government  of  that  class.  Of  this  we  have  many 
examples  in  Central  and  South  America.  It  becomes  then  a 
matter  of  degree,  and  the  feyr  manifested  by  the  briefs  filed  in 
this  case  would  seem  to  indicate,  not  that  we  are  drifting  from 
the  secure  moorings  of  a  republic,  but  that  our  State,  by  the 
direct  system  of  legislation  complained  of,  is  becoming  too  demo- 
cratic— advancing  too  rapidly  toward  a  republic  pure  in  form. 
This,  it  is  true,  counsel  for  petitioner  does  not  concede,  but 
under  any  interpretation  of  which  the  term  is  capable,  or  from 
any  view  thus  far  found  expressed  in  the  writings  of  the 
prominent  statesmen  who  were  members  of  the  constitutional 
convention,  or  who  figured  in  the  early  upbuilding  of  the  nation, 
it  follows  that  the  system  here  assailed  brings  us  nearer  to  a 


107  CONSTITUTION  OF  1879.  Art.  IV,  §  1 

state  republican  in  form  than  before  its  adoption.  Mr.  Thoir.as 
Jefferson,  in  1816,  when  discussing  the  term  republic,  defined 
and  illustrated  his  view  thereof  as  follows:  "Indeed,  it  must 
be  acknowledged  that  the  term  'republic'  is  of  very  vague  ap- 
plication in  every  language.  Witness  the  self-stj'led  republics 
of  Holland,  Switzerland,  Genoa,  Venice,  Poland.  Were  I  to  as- 
sign to  this  term  a  precise  and  definite  idea,  I  would  say,  purely 
and  simply,  it  means  a  government  by  its  citizens  in  mass,  act- 
ing directly  and  not  personally,  according  to  the  rules  estab- 
lished by  the  majority,  and  that  every  other  government  is 
more  or  less  republican,  in  proportion  as  it  has  in  its  composi- 
tion more  or  less  of  this  ingredient  of  the  direct  action  of  the 
citizens."  Writings  of  Thomas  Jefferson,  vol.  15,  p.  19.  It  is 
well  known  that  at  the  time  of  the  adoption  of  the  Federal 
constitution  there  existed  in  some  of  the  Atlantic  States  a 
system  of  local  government,  known  as  "New  England  towns," 
in  which  the  people  had  the  right  to  legislate  upon  various 
matters,  and  masses  assembling  at  stated  periods  for  that  pur- 
pose; all  of  which  was  within  the  knowledge  of  those  composirjf 
the  constitutional  convention.  After  observing  that  a  direct 
republic  under  his  definition  would  necessarily  be  restrained  to 
narrow  limits,  such  as  in  a  New  England  township,  and  that 
the  next  step  in  use  at  that  time  was  through  the  representa- 
tive system,  Mr.  Jefferson  pointed  out  that  the  farther  the 
officials  of  State  or  nation  are  separated  from  the  masses  pro- 
portionately less  does  such  State  or  government  retain  the 
elements  of  a  republic;  and  on  page  23  concludes:  "On  this  view 
of  the  import  of  the  term  'republic,'  instead  of  saying,  as  has 
been  said,  that  it  may  mean  anything  or  nothing,  we  may  say 
with  truth  and  meaning  that  governments  are  more  or  less 
republican,  as  tliey  have  more  or  less  of  the  element  of  popular 
election  and  control  in  their  composition;  and  believing,  as  I  do, 
that  the  mass  of  citizens  is  the  safest  depository  of  their  own 
rights  and,  especially,  that  the  evils  flowing  through  duperies 
of  the  people  are  less  injurious  tlian  those  from  tlie  egoism  of 
their  agents,  I  am  a  friend  to  that  composition  of  government 
which  has  in  it  the  most  of  this  ingredient."  The  observations 
quoted  are  in  full  accord  with  the  recorded  views  of  all  of  the 
writers  and  statesmen  of  that  time,  when  the  intention  of  the 
framers  of  our  national  constitution  was  fully  understood,  in  the 
light  of  which  it  seems  inconceivable  that  a  State,  merely  be- 


Art.  IV,  §  1         CONSTITUTION  OF  1879.  108 

cause  it  may  evolve  a  system  by  which  its  citizens  become  a 
branch  of  its  legislative  department,  co-ordinate  with  their 
representatives  in  the  Legislature,  loses  caste  as  a  republic. 
The  extent  to  which  a  Legislature  of  any  State  may  enact  laws 
is,  and  always  has  been,  one  of  degree,  depending  upon  limita- 
tions prescribed  by  its  constitution;  some  constitutions  having 
few  and  others  many  limitations.  But  in  all  States,  whatever 
may  be  the  restriction  placed  upon  their  representatives,  the 
people,  either  by  constitutional  amendment  or  by  convention, 
called  for  that  purpose,  have  had,  and  have,  the  power  to 
directly  legislate,  and  to  change  all  or  any  laws  so  far  as 
deemed  proper — limited  only  by  clear  inhibitions  of  the  national 
constitution.     Cooley  Const.  Lim.   (6th  Ed.)   44. 

"  'An  examination  of  our  State  constitution,  as  first  adopted, 
discloses  many  restrictions  upon  the  law-making  department, 
among  which  is  a  provision  to  the  effect  that  no  amendment 
thereto  should  be  submitted  to  the  people  for  ratification  until 
after  it  passed  two  successive  sessions  of  the  Legislature.  In 
course  of  time,  an  amendment  under  this  provision  was  legally 
submitted  and  adopted  by  a  majority  vote  of  the  people,  by 
which  the  people  reserved  the  right  to  change  the  constitution, 
or  any  part  thereof  without  awaiting  this  legislative  formality, 
the  validity  of  which  is  not  open  to  doubt.  It  is  not  possible, 
indeed,  it  is  not  practicable,  then,  for  the  people  further  to 
restrict  the  power  of  their  representatives  to  legislate  upon  mat- 
ters of  public  interest,  and  in  so  doing,  are  they  not,  and  even 
under  the  old  system  were  they  not,  directly  legislating?  This 
system  of  direct  legislation  has  been  in  common  use  throughout 
the  various  State  governments  since  their  inception,  but  until 
the  adoption  of  the  initiative  and  referendum  amendments,  no 
one  was  heard  to  assert  that  an  amendment  to  the  constitution 
of  a  State  merely  because  of  depriving  the  Legislature  of  some 
law-making  power  or  powers  held  by  it  at  the  adoption  of  the 
national  constitution  was  void  on  the  grounds  of  being  incon- 
sistent with  a  republican  form  of  government.  The  absurdity 
of  such  a  contention,  if  made,  would  at  once  be  obvious.' 

"6. 

"Following  the  case  of  Luther  v.  Borden,  it  appears  that  when 
Congress,  the  political  branch  of  the  Federal  government,  has 
admitted  the  representatives  of  a  State  to  Congress,  it  has  by 


109  CONSTITUTION  OP  1879.         Art.  IV,  §  1 

that  fact  decided  that  the  form  of  government  of  that  State  is 
republican. 

"Congress  has  admitted  the  representatives  of  the  State  of 
Oklahoma,  and  by  so  doing  has  declared  that  its  form  of  govern- 
ment is  republican.  Its  constitution  contains  the  following  pro- 
visions concerning  the  initiative  and  referendum: 

"Article  V. 

"Legislative  Department. 

"Initiative  and  Referendum. 

"Section  1.  The  legislative  authority  of  the  State  shall  be 
vested  in  a  Legislature,  consisting  of  a  Senate  and  a  House  of 
Representatives,  but  the  people  reserve  to  themselves  the  power 
to  propose  laws  and  amendments  to  the  constitution  and  to 
enact  or  reject  the  same  at  the  polls  independent  of  the  Legis- 
lature, and  also  reserve  power  at  their  own  option  to  approve 
or  reject  at  the  polls  any  act  of  the  Legislature. 

"Section  2.  The  first  power  reserved  by  the  people  is  the 
initiative,  and  eight  per  centum  of  the  legal  voters  shall  have 
the  right  to  propose  any  legislative  measure,  and  fifteen  per 
centum  of  the  legal  voters  shall  have  the  right  to  propose  amend- 
ments to  the  constitution  by  petition,  and  every  such  petition 
shall  include  the  full  text  of  the  measure  so  proposed.  The 
second  power  is  the  referendum,  and  it  may  be  ordered  (except 
as  to  laws  necessary  for  the  immediate  preservation  of  public 
peace,  health  or  safety),  either  by  petition  signed  by  five  per 
centum  of  the  legal  voters  or  by  the  Legislature,  as  other  bills 
are  enacted.  The  ratio  and  per  centum  of  legal  voters  herein- 
before stated  shall  be  based  upon  the  total  general  election 
for  the  State  office  receiving  the  highest  number  of  votes  at 
such   election. 

"Section  7.  The  reservation  of  the  powers  of  the  initiative 
and  referendum  in  this  article  shall  not  deprive  the  Legislature 
of  the  right  to  repeal  any  laws,  propose  or  pass  any  measure, 
which  may  be  consistent  with  the  Constitution  of  the  State 
and  the  Constitution  of  the  United  States. 

"7. 
"Eckerson  v.  City  of  Des  Moines,  147  Iowa,  452,  115  K  W.  177. 
"  'The  Federal  guaranty  of  a  republican  form  of  government 
applies  only  to  States  and  does  not  affect  their  subdivisions.' 


Art.  IV,  §  1  CONSTITUTION  07  1879.  110 

"8. 

"Hopkins  v.  Dulnth,  81  Minn.  ISO,  83  N.  W.  53G. 
"  'Providing  local  self-government  by  the  voters  directly  in- 
terested through  a  referendum  is  abstractly  as  well  as  con- 
cretely more  republican,  than  through  representatives  of  the 
people  in  the  Legislature.'  And  the  State  Constitution  doing 
this  provides  a  republican  form  of  government. 

"9. 

"State  V.  Schluer,  115  Pacific  (Oregon),  1057. 
"This  is  the  most  recent  case  decided  in  Oregon  and  concerns 
the  construction  and  effect  of  initiative  provisions  of  the  Oregon 
constitution,  but  does  not  consider  whether  they  are  consistent 
with  a  republican  form  of  government. 

"10. 

"To  sum  up: 

"(a)  The  political  branch  of  the  Federal  government  has  de- 
cided, in  admitting  Oklahoma  to  the  Union,  that  the  initiative 
and  referendum  of  state-wide  application  are  not  inconsistent 
with  a  republican  form  of  government,  guaranteed  by  the  Fed- 
eral constitution. 

"(b)  The  Supreme  Court  of  California  has  decided  that  the 
initiative  and  referendum  in  municipal  affairs  is  consistent  with 
a  republican  form  of  government. 

"(c)  The  Supreme  Court  of  Oregon  has  declared  that  the 
referendum  and  initiative  of  state-wide  application  are  not 
repugnant  to  a  republican  form  of  government. 

"Eespectfully  submitted, 

"LOUIS  BARTLETT." 
Additional  References. 

Political  Science  Quarterly,  Yol.  XXVI,  No.  1  (March,  1911)— 
"People's  Eule  in  Oregon" — Hayues. 

Journal  of  Accountancy,  Vol.  XII,  No.  2  (June,  1911) — 
"Facts  About  the  Oregon  System"- -Ford;  "Direct  Legislation, 
etc." — Walker;  "Oregon  System  in  Practice" — Owen;  "Massa- 
chusetts  Wants  the  Initiative  and  Eeferendum" — Johnson. 

Congressional  Eecord,  62d  Congress,  1st  Session  (1911),  De 
bates  on  Constitution  of  Arizona. 

The  People's  Law,  or  Popular  Participation  in  Law-Making, 
a  Study  in  the  Evolution  of  Democracy  and  Direct  Law-Making. 


Ill  CONSTITUTION   OF    1879.  Art.  IV,  §  1 

By  Charles  S.  Lobinger,  N".  Y,  The  Macmillan  Co.,  1009.  Pp. 
xxi,  429.     This  work  contains  a  copious  bibliography. 

Appellant's  brief,  State  of  Oregon  v.  Pacific  States  Telegraph 
and  Telephone  Co.,  Sup.  Ct.  Or.,  March  term,  1908.  Full  argu- 
ment for  invalidity  of  initiative  legislation. 

Initiative  and  Referendum:  Ex  parte  Wagner  (Okl.),  95  Pac. 
435;  Norris  et  al.  v.  Cross  (Okl.),  105  Pac.  1000;  State  v.  Lang- 
worthy  (Or.),  1C4  Pac.  424;  In  re  Initiative  Petition  No.  2 
(Okl.),  109  Pac.  823;  Haines  v.  City  of  Forest  Grove  (Or.), 
103  Pac.  775;  State  v.  Pacific  Tel.  &  Tel.  Co.  (Or.),  99  Pac.  427; 
Farrell  v.  City  of  Portland  (Or.),  98  Pac.  145;  Southwestern 
Tel.  &  Tel.  Co.  v.  Citv  of  Dallas  (Tex.),  131  S.  W.  80;  State  v. 
Eoach  (Mo.),  130  S.  W.  689;  Brazell  v.  Zeigler  (Okl.),  110  Pac. 
1052. 

Initiative:  In  re  Initiative  State  Question,  No.  11  (Okl.),  110 
Pac.  647;  Common  Council  v.  Harrington  (Mich.),  125  N.  W. 
383. 

Initiative,  Referendum  and  Recall:  Graham  v.  Roberts 
(Mass.),  85  N.  E.  1009;  Booth  v.  McGuinness  (N.  J.),  75  At- 
lantic,  455. 

Recall:  Hillzinger  v.  Gillman  (Wash.),  105  Pac.  471. 

Referendum:  Mever  et  al.  v.  Town  of  Boonville  (Ind.),  70 
N.  E.  146;  Ray  v.  Colby  &  Tenney  et  al.  (Neb.),  97  N.  W.  591; 
Board  of  Education  of  City  of  Sapulpa  et  al.  v.  McMahan 
(Okl.),  110  Pac.  907;  State  v.  Russell  (Wis.),  102  N.  W.  1052; 
North  v.  McMahan  (Okl.),  110  Pac.  1115;  State  v.  Portland 
Ry.  Light  &  Power  Co.    (Or.),  107  Pac.  958. 

The  Referendum  as  a  "Republican  Form  of  Government." 

The  Harvard  Law  Review  has  the  following  discussion  in  its 
issue  for  December,  1910: 

"The  referendum  has  frequently  been  attacked  as  a  delegation 
of  legislative  power  and  hence  contrary  to  the  State  institu- 
tions, which  ve.st  that  power  in  the  Legislature.  (For  a  dis- 
cussion of  this  phase  of  the  problem,  see  7  Harv.  L.  Rev.  485; 
16  Ibid.  218.)  Notwithstanding  this  argument,  a  general  statute 
to  take  effect  only  if  approved  by  a  majority  of  the  voters  was 
upheld  in  a  recent  Wisconsin  case.  State  ex  rel.  Van  Alstine  v. 
Frear,  142  Wis.  320.  (For  a  di.^cussion  of  another  point  in  the 
same  case,  see  24  Harv.  L.  Rev.  50.) 


Art.  IV,  §  1         CONSTITUTION  OF  1879.  112 

"In  view  of  the  comparative  ease  with  which  State  constitu- 
tions are  amended,  the  relation  to  them  of  direct  legislation  is 
not  of  such  great  practical  importance  as  its  validity  under 
the  Constitution  of  the  United  States.  An  objection  to  the 
referendum,  especially  when  coupled  with  the  initiative,  which 
has  frequently  been  suggested,  [see  McClain,  Constitutional 
Law,  10;  56  Cent.  L.  J.  247.  But  see  Southwestern  Telegraph 
&  Telephone  Co.  v.  City  of  Dallas  (Tex.),  131  S.  W.  80],  but 
is  not  discussed  in  the  principal  case,  is  that  direct  legislation 
violates  the  clause  of  the  Federal  Constitution  which  guarantees 
to  each  State  a  republican  form  of  government.  (U.  S.  Const., 
art.  4,  sec.  4.)  The  contention  is  that  a  republic  is  a  represent- 
ative democracy  as  distinguished  from  a  direct  or  pure  de- 
mocracy. Hence,  it  becomes  important  to  determine  the  true 
meaning  of  the  word. 

"The  Latin  res  publica,  at  least  as  late  as  the  sixteenth  cen- 
tury, was  altogether  colorless  as  to  the  form  of  government  it 
designated.  (See  Calvin,  Institutionum  Christianae  Eeligionis, 
lib.  4,  cap.  20.)  The  compound  adjective  is  not  found  in 
classical  or  mediaeval  Latin.  (It  does  not  appear  in  Du  Cange, 
Glossarium.)  The  noun  'republic'  and  the  adjective  'republican' 
were  used  by  "Wilson,  [see  Chisholm  v.  Georgia,  2  Dall.  (U.  S.) 
419,  457],  the  author  of  the  clause  in  its  final  form,  (see  2  Gil- 
pin, Madison  Papers,  1141)  and  by  other  publicists  (see  1  Madi- 
son, Letters  and  Other  Writings,  350;  4  Ibid.  467;  10  Ford, 
"Writings  of  Thomas  Jefferson,  28)  of  the  time  in  a  sense  broad 
enough  to  include  direct  democracy.  The  same  thing  is  true 
of  the  use  of  the  corresponding  French  words  republique  and 
republicain  by  Montesquieu  (see  L'Esprit  des  Lois,  liv.  2,  ch. 
1,  2)  and  apparently  by  Rousseau,  (see  Contrat  Social,  liv.  3,  ch. 
4)  the  writings  of  both  of  whom  had  a  great  influence  on 
American  political  thought  of  that  period.  The  political  party 
which  advocated  keeping  the  government  as  close  to  the  people 
as  possible  was  called,  shortly  after  the  formation  of  the  Con- 
stitution, the  Republican  Party.  (See  Hart,  Formation  of  the 
Union,  155,  164.)  On  the  other  hand,  Madison  defines  a  re- 
public as  'a  government  in  which  the  scheme  of  representation 
takes  place,'  and  contrasts  it  with  a  pure  democracy.  (See  The 
Federalist,  No.  10.)  Discussion  of  the  clause  under  considera- 
tion in  the  constitutional  convention  indicates  that  it  was  di- 
rected against  insurrection,  invasion,  and  monarchical  forms. 
(See  2  Gilpin,  Madisou  Papers,  1139-1141.) 


113  CONSTITUTION  OF  1879.  Art.  IV,  §  2 

"The  state  governments  in  existence  in  1787  must  be  taken 
as  examples  of  the  republican  form,  in  the  scrso  in  wliich  that 
phrase  is  used  in  the  constitution.  [See  Minor  v.  Happersett, 
21  Wall.  (U.  S.)  162.]  In  spite  of  the  fact  that  V:\e  rcferer.dum 
appears  in  the  formation  of  some  of  the  state  constitutions 
(see  Lobingier,  The  People's  Law,  163-187)  and  in  spite  of  the 
existence  of  the  New  England  town  government  (For  an  argu- 
ment from  this  that  the  guaranty  has  no  application  to  local 
government,  see  Eckerson  v.  Dcs  Moines,  137  la.  452),  so 
close  a  student  of  political  science  as  Hamilton  believed  that 
the  state  governments  were  then  wholly  representative.  (See 
The  Federalist,  No.  63.)  Another  of  the  authors  of  The  Fed- 
eralist, however,  points  out  that  the  constitution  does  not  forbid 
the  substitution  of  other  republican  forms  for  those  then  ex- 
isting. [See  Ibid.  No.  43,  sec.  6  (Madison).]  It  seems,  on  the 
whole,  that  'republican'  in  the  constitution  is  ambiguous,  and 
that  a  positive  construction  that  it  had  a  meaning  so  narrow 
as  to  exclude  direct  legislation  cannot  be  supported. 

"But  even  if  'Eepublican  Form  of  Government'  does  mean 
representative  government,  it  might  well  be  contended  that 
a  slight  tincture  of  direct  democracy  would  not  destroy  the 
representative  character  of  a  state  government.  (See  State 
V.  Pacific  States  Telephone  &  Telegraph  Co.,  53  Or.  162;  Kad- 
derly  v.  City  of  Portland,  44  Or.  118.)  Furthermore,  it  is 
probable  that  the  enforcement  of  the  constitutional  guaranty 
is  a  political  question  for  Congress  and  the  President  rather 
than  for  the  judiciary.  [See  Taylor  v.  Beckham,  178  U.  S. 
548,  578;  Luther  v.  Borden,  7  How.  (U.  S.)  1,  42.]" 

Sessions  of  legislature. 

Sec,  2.  The  sessions  of  the  legislature  shall  be  bien- 
nial, unless  the  governor  shall,  in  the  interim,  convene 
the  legislature,  by  proclamation,  in  extraordinary  ses- 
sion. All  sessions,  other  than  extraordinary,  shall 
commence  at  twelve  o'clock  M.,  on  the  first  Monday 
after  the  first  day  of  January  next  succeeding  the  elec- 

Constitution — 8 


Art.  IV,  §  2  CONSTITUTION  OP  1879.  114 

tion  of  its  members,  and  shall  continue  in  session  for 
a  period  not  exceeding  thirty  days  thereafter;  where- 
upon a  recess  of  both  houses  must  be  taken  for  not  less 
than  thirty  days.  On  the  reassembling  of  the  legis- 
lature, no  bill  shall  be  introduced  in  either  house  with- 
out the  consent  of  three-fourths  of  the  members 
thereof,  nor  shall  more  than  two  bills  be  introduced 
by  any  one  member  after  such  reassembling.  (Amend- 
ment approved  October  10,  1911.) 

[AMENDMENT  OF  1908.] 
Sec.  2.  The  sessions  of  the  legislature  shall  commence  at 
twelve  o'clock  M.  on  the  first  Monday  after  the  first  clay  of 
January  next  succeeding  the  election  of  its  members,  and  after 
the  election  held  in  the  year  ISSO,  shall  be  biennial,  unless  the 
governor  shall,  in  the  interim,  convene  the  legislature  by  procla- 
mation. No  bill  shall  be  introduced  in  either  house  forty  days 
after  the  commencement  of  each  session  without  the  consent  of 
three-fourths  of  the  members  thereof.  (Amendment  adopted 
November  3,  1908.) 

[OEIGINAL  SECTION.] 
Sec.  2.  The  sessions  of  the  legislature  shall  commence  at 
twelve  o'clock  M.  on  the  first  Monday  after  the  first  day  of 
January  next  succeeding  the  election  of  its  members,  and, 
after  the  election  held  in  the  year  eighteen  hundred  and  eighty, 
shall  be  biennial,  unless  the  governor  shall,  in  the  interim, 
convene  the  legislature  by  proclamation.  No  pay  shall  be  al- 
lowed to  members  for  a  longer  time  than  sixty  days,  except 
for  the  first  session  after  the  adoption  of  this  constitution,  for 
which  they  may  be  allowed  pay  for  one  hundred  days.  And 
no  bill  shall  be  introduced,  in  either  house,  after  the  expiration 


115  CONSTITUTION  OP  1879.         Art.  IV,  §  3 

of  iiinety  days  from  the  commencement  of  the  first  session,  nor 
after  fifty  days  after  the  commencement  of  each  succeeding 
session,  without  the  consent  of  two-thirds  of  the  members 
thereof. 

SESSIONS. — After  the  legislature  has  adjourned  sine  die,  the 
court  has  no  power  to  carry  into  effect  a  mandate  requiring 
legislative  action,  even  if  such  mandate  were  otherwise  proper. 
(French  v.  Senate,  146  Cal.  604,  SO  Pac.  1031,  2  Ann.  Cas.  756.) 

The  legislature  cannot  be  convened  upon  the  mandate  of  the 
judicial  power.  (French  v.  Senate,  146  Cal.  604,  80  Pac.  1031, 
2  Ann.  Cas.  756.) 

INTEODUCTION  OF  BILLS.— After  the  fifty  days  within 
which  bills  may  be  introduced  have  expired,  a  bill  previously 
introduced  may  be  amended  in  the  same  manner  as  before,  and 
several  bills  may  be  consolidated  in  the  form  of  a  substitute. 
(^Hale  V.  McGettigan,  114  Cal.  112,  45  Pac.  1049.) 

If  the  legislative  journals  are  silent  upon  the  observance  of 
any  constitutional  requirement  as  to  the  passage  of  bills,  it 
cannot  be  assumed  that  such  requirement  was  omitted  by  the 
legislature.     (Hale  v.  McGettigan,  114  Cal.  112,  45  Pac.  1049.) 

Election  and  tenn  of  assemblymen. 

Sec.  3.  i\Iembers  of  the  assembly  shall  be  elected  in 
the  year  eighteen  hundred  and  seventy-nine,  at  the  time 
and  in  the  manner  now  provided  by  law.  The  second 
election  of  members  of  the  assembly,  after  the  adoption 
of  this  constitution,  shall  be  on  the  first  Tuesday  after 
the  first  IMonday  in  November,  eighteen  hundred  and 
eighty.  Thereafter,  members  of  the  assembly  shall  be 
chosen  biennially,  and  their  term  of  office  shall  be  two 
years;  and  each  election  shall  be  on  the  first  Tuesday 
after  the  first  Monday  in  November,  unless  otherwise 
ordered  by  the  legislature. 


Art.  IV,  §§  4,  5     CONSTITUTION  OF  1879.  116 

Election  and  term  of  senators. 

Sec.  4.  Senators  shall  be  chosen  for  the  term  of  four 
years,  at  the  same  time  and  places  as  members  of  the 
assembly,  and  no  person  shall  be  a  member  of  the  senate 
or  assembly  who  has  not  been  a  citizen  and  inhabitant  of 
the  state  three  years,  and  of  the  district  for  which  he 
shall  be  chosen  one  year,  next  before  his  election. 

MEMBEHS. — A  person  properly  qualified  when  elected  to  the 
senate  does  not  forfeit  his  office  by  the  redistricting  of  the 
state,  leaving  the  person  outside  of  the  district  which  he  repre- 
sents.    (People  V.  Markham,  96  Cal.  262,  31  Pac.  102.) 

Number  and  classes  of  senators. 

Sec.  5.  The  senate  shall  consist  of  forty  members, 
and  the  assembly  of  eighty  members,  to  be  elected  by 
districts,  numbered  as  hereinafter  provided.  The  seats 
of  the  twenty  senators  elected  in  the  year  eighteen  hun- 
dred and  eighty-two  from  the  odd-numbered  districts 
shall  be  vacated  at  the  expiration  of  the  second  year,  so 
that  one-half  of  the  senators  shall  be  elected  every  two 
years ;  provided,  that  all  the  senators  elected  at  the  first 
election  under  this  constitution  shall  hold  office  for  the 
term  of  three  years. 

TERM  OF  OFFICE. — The  seats  of  the  twenty  senators  elected 
in  1882,  from  the  districts  designated  in  the  act  of  1874  by 
odd  numbers,  became  vacant  at  the  expiration  of  the  second 
year,  and  their  successors  were  required  to  be  elected  from 
the  same  districts  for  the  term  of  two  years.  (McPherson  v. 
Bartlett,  65  Cal.  577,  4  Pac.  582.) 


117  CONSTITUTION  OF  1879.         Art.  IV,  §  6 

Senatorial  and  legislative  districts. 

Sec,  6.  For  the  purpose  of  choosing  members  of  the 
legislature,  the  state  shall  be  divided  into  forty  senatorial 
and  eighty  assembly  districts,  as  nearly  equal  in  popula- 
tion as  may  be,  and  composed  of  contiguous  territory,  to  be 
called  senatorial  and  assembly  districts.  Each  senatorial 
district  shall  choose  one  senator,  and  each  assembly  dis- 
trict shall  choose  one  member  of  assembly.  The  sen- 
atorial districts  shall  be  numbered  from  one  to  forty, 
inclusive,  in  numerical  order,  and  the  assembly  districts 
shall  be  numbered  from  one  to  eighty,  in  the  same  order, 
commencing  at  the  northern  boundary  of  the  state,  and 
ending  at  the  southern  boundary  thereof.  In  the  forma- 
tion of  such  districts,  no  county,  or  city  and  county,  shall 
be  divided,  unless  it  contain  sufficient  population  within 
itself  to  form  two  or  more  districts;  nor  shall  a  part  of 
any  county,  or  of  any  city  and  county,  be  united  with 
any  other  county,  or  city  and  county,  in  forming  any 
district.  The  census  taken  under  the  direction  of  the 
Congress  of  the  United  States,  in  the  year  one  thousand 
eight  hundred  and  eighty,  and  every  ten  years  there- 
after, shall  be  the  basis  of  fixing  and  adjusting  the  legis- 
lative districts;  and  the  legislature  shall,  at  its  first  ses- 
sion after  each  census,  adjust  such  districts  and  reappor- 
tion the  representation  so  as  to  preserve  them  as  near 
equal  in  population  as  may  be.  But  in  making  such 
adjustment  no  persons  who  are  not  eligible  to  become 
citizens  of  the  United  States,  under  the  naturalization 


Art.  IV,  §  6  CONSTITUTION  OF  1879.  118 

laws,  shall  be  counted  as  forming  a  part  of  the  popula- 
tion of  any  district.  Until  such  districting  as  hereiji 
provided  for  shall  be  made,  senators  and  assemblymen 
shall  be  elected  by  the  districts  according  to  the  appor- 
tionment now  provided  for  by  law. 

LEGISLATIVE  DISTEICTS.— The  legislature  may  join  two 
counties  in  one  assembly  district.     (People  v.  Hill,  7  Cal.  97.) 

The  term  of  members  of  the  senate  is  not  affected  by  the  fact 
that  after  their  election  the  state  is  so  redistricted  that  some 
counties  in  the  newly  formed  districts  will  have  double  repre- 
sentation and  others  will  be  deprived  of  their  fair  and  equal 
representation.     (People  v.  Pcndegast,  96  Cal.  289,  31  Pac.  103.) 

Where  the  first  legislature  whose  duty  it  is  to  provide  for  the 
apportionment  fails  to  do  so,  the  duty  devolves  upon  each  suc- 
ceeding legislature  until  it  is  performed.  (People  v.  Eice,  135 
N.  Y.  473,  31  N.  E.  921,  16  L.  R.  A.  836.) 

The  legislature  cannot  be  compelled  to  make  an  apportion- 
ment.    (In  re  State  Census,  6  S.  D.  540,  62  N.  W.  129.) 

The  apportionment  must  be  according  to  population,  but 
mathematical  exactness  is  not  required.  (People  v.  Thompson, 
155  111.  451,  40  N.  E.  307;  Parker  v.  State,  133  Ind.  178,  32 
N.  E.  836,  33  N.  E.  119,  18  L.  R.  A.  567;  Prouty  v.  Stover,  11 
Kan.  235;  Opinion  of  Justices,  18  Me.  458;  Board  of  Supervisors 
V.  Blacker,  92  Mich.  638,  52  N.  W.  951,  16  L.  R.  A.  432;  People 
V.  Broome,  20  N.  Y.  Supp.  470,  65  Hun,  624;  People  v.  Board 
of  Aldermen,  14  Misc.  Rep.  105,  35  N.  Y.  Supp.  259;  People 
v.  Eice,  135.  N.  Y.  473,  31  N.  E.  921,  16  L.  E.  A.  836;  Matter 
of  Baird,  142  N.  Y.  523,  37  N.  E.  619;  Matter  of  Whitney,  75 
Hun,  581,  27  N.  Y.  Supp.  657;  State  v.  Dudley,  1  Ohio  St.  437; 
State  v.  Cunningham,  81  Wis.  440,  51  N.  W.  724.) 

If  the  apportionment  is  made  in  the  exercise  of  a  fair  and 
honest  discretion  so  as  to  preserve,  as  nearly  as  may  be,  equality 
of  representation,  it  cannot  be  overthrown  because  not  mathe- 
matically equal;  but  if  the  apportionment  does  not  give  sub- 
stantially just  and  equal  representation  to  the  people  of  each 
county,  it  cannot  be  sustained.  (Ballentine  v.  Willey,  3  Idaho, 
496,  31  Pac.  994;  Prouty  v.  Stover,  11  Kan.  235;  People  v. 
Thompson,   155   111.   451,   40   N.   E.   307;   People   v.   Broome,   20 


119  CONSTITUTION  OF  1879.         Art.  IV,  §  7 

N.  Y.  Supp.  470;  People  v.  Rice,  135  N.  Y.  473,  31  N.  E.  921, 
16  L.  R.  A.  836;  Smith  v.  St.  Lawrence  Co.,  148 'N.  Y.  187,  42 
isr.  E.  592;  State  v.  Cunningham,  83  Wis.  90,  35  Am.  St.  Eep. 
17,  53  N.  W.  35,  17  L.  R.  A.  145.) 

While  this  section  provides  that  persons  who  are  not  eligible 
to  become  citizens  of  the  United  States  shall  not  be  counted 
in  making  the  apportionment,  an  apportionment  is  not  neces- 
sarily invalid  because  they  are  counted.  (Matter  of  Whitney, 
142  N.  Y.  531,  37  N.  E.  C21;  People  v.  Rice,  135  N.  Y.  473,  31 
N.  E.  921,  16  L.  R.  A.  836;  Matter  of  Whitney,  75  Hun,  581, 
27  N.  Y.  Supp.  657.) 

This  section  requires  that  the  districts  shall  be  composed  of 
contiguous  territory,  and,  while  the  legislature  has  some  discre- 
tion in  this  matter,  if  it  has  been  wholly  ignored,  the  appor- 
tionment is  void.  (People  v.  Thompson,  155  111.  451,  40  N.  E. 
307;  State  v.  Cunningham,  83  Wis.  90,  35  Am.  St.  Rep.  17,  53 
N.  W.  35,  17  L.  R.  A.  145.) 

As  to  what  territory  is  "contiguous,"  see  Board  of  Supervisors 
V.  Blacker,  92  Mich.  038,  52  N.  W.  951,  16  L.  R.  A.  432;  Parker 
V.  State,  133  Ind.  178,  32  N.  E.  836,  33  N.  E.  119,  18  L.  R.  A. 
567;  People  v.  Thompson,  155  111.  451,  40  N.  E.  307. 

Under  this  section  a  county  cannot  be  divided,  unless  it 
contains  sufficient  population  to  make  two  or  more  districts. 
(Board  of  Supervisors  v.  Blacker,  92  Mich.  638,  52  N.  W.  951. 
16  L.  R.  A.  432;  State  v.  Cunningham,  81  Wis.  440,  51  N.  W. 
724;  People  v.  Board  of  Aldermen,  89  Hun,  4G0,  35  N.  Y.  Supp. 
817.) 

Organization  of  legislature. 

Sec.  7.  Each  house  shall  choose  its  officers,  and  judge 
of  the  qualifications,  elections,  and  returns  of  its  mem- 
bers. 

QUALIFICATIONS  OF  MEMBERS. — Whether  a  senator  has 
been  regularly  elected  is  a  question  exclusively  for  the  senate. 
(Opinion  of  Justices,  12  Fla.  686.) 

The  house  is  to  judge  of  the  election  of  its  members  and  the 
returns  are  only  prima  facie  evidence  of  election.     (Chrisnian 


Art.  IV,  §  8         CONSTITUTION  OF  1879.  120 

V.  Anderson,  2  Cong.  El.  Cas.  328;  Spaulding  v.  Mead,  1  Cong. 
El.  Cas.   157.) 

The  refusal  of  the  executive  of  a  state  to  grant  a  certificate 
of  election  will  not  prejudice  the  right  to  a  seat.  (Richard's 
Case,  Clark  &  H.  95;  Clement's  Case,  Cong.  El.  Cas.  1864-65, 
366.) 

The  qualifications  of  members  being  fixed  by  the  constitution, 
additional  ones  cannot  be  required  by  the  legislature.  (Barney 
V.  McCreery,  1  Cong.  El.  Cas.  167;  Turney  v.  Marshall,  2  Cong. 
El,  Cas.  167;  Trumbull's  Case,  2  Cong.  El.  Cas.  618.) 

While  the  jurisdiction  conferred  by  this  provision  upon  the 
legislature  is  exclusive  of  the  jurisdiction  of  the  courts,  the 
canvassers  may  be  compelled  by  mandamus  to  conduct  the  can- 
vass and  declare  the  result,  thus  giving  the  person  holding  the 
certificate  the  prima  facie  right  to  the  seat.  (O'Ferrall  v. 
Colby,  2  Minn.  180.) 

As  to  the  qualifications  of  members  of  inferior  legislative 
bodies,  see  People  v,  Bingham,  82  Cal.  238,  22  Pac.  1039. 

What  number  constitutes  a  quorum. 

Sec.  8.  A  majority  of  each  house  shall  constitute  a 
quorum  to  do  business,  but  a  smaller  number  may  ad- 
journ from  day  to  day,  and  may  compel  the  attendance 
of  absent  members  in  such  manner,  and  under  fcjuch 
penalties,  as  each  house  may  provide. 

QUORUM. — A  rule  providing  that  "on  demand  of  any  member, 
or  at  the  suggestion  of  the  speaker,  the  names  of  members 
sufficient  to  make  a  quorum  in  the  hall  of  the  house  who  do 
not  vote  shall  be  noted  by  the  clerk  and  recorded  in  the 
journal,  and  reported  to  the  speaker  with  the  names  of  the 
members  voting,  and  be  counted  and  announced  in  determining 
the  presence  of  a  quorum  to  do  business,"  is  a  constitutional 
mode  of  ascertaining  the  presence  of  a  quorum.  (United  States 
V.  Ballin,  144  U.  S.  1,  12  Sup.  Ct.  507,  36  L.  Ed.  321.) 


121  CONSTITUTION  OF  1879.     Art.  IV,  §§  9, 10 

Rules  for  their  government — Expulsions. 

Sec.  9.  Each  house  shall  determine  the  rule  of  its 
proceeding,  and  may,  with  the  concurrence  of  two-thirds 
of  all  the  members  elected,  expel  a  member. 

EXPULSION  OF  MEMBERS.— A  member  may  be  expelled 
for  any  misdemeanor  which,  though  not  punishable  by  statute, 
is  inconsistent  with  the  trust  and  duty  of  a  member.  (Smith's 
Case,  1  Hall  Law  J.  459.) 

The  power  granted  by  this  section  to  expel  a  member  for 
bribery  is  not  affected  by  the  provision  of  section  35  of  this 
article,  making  such  bribery  a  felony.  (French  v.  Senate,  146 
Cal.  604,  80  Pac.  1031,  2  Ann.  Cas.  756.) 

A  resolution  of  expulsion  from  the  legislature  has  no  effect 
upon  the  rights  of  the  member  expelled  further  than  to  termin- 
ate his  right  to  sit  as  a  member  of  the  legislative  body. 
(French  v.  Senate,  146  Cal.  604,  80  Pac.  1031,  2  Ann.  Cas.  756.) 

The  power  of  the  senate  to  expel  a  member  is  exclusive  and 
the  judiciary  has  no  power  to  control  the  most  arbitrary  and 
unfair  action  of  the  legislative  department  in  that  regard. 
(French  v.  Senate,  146  Cal.  604,  80  Pac.  1031,  2  Ann.  Cas.  756.) 

As  to  the  power  to  punish  for  contempt,  see  note  to  section 
1  of  this  article. 

Each  house  to  keep  a  journal. 

See.  10.  Each  house  shall  keep  a  journal  of  its  pro- 
ceedings, and  publish  the  same,  and  the  yeas  and  nays 
of  the  members  of  either  house,  on  any  question,  shall, 
at  the  desire  of  any  three  members  present,  be  entered 
on  the  journal. 

JOURNALS. — A  journal  is  a  public  record  of  which  courts 
may  take  judicial  notice.     (Brown  v.  Nash,  1  Wyo.  85.) 

The  journal  cannot  be  kept  secret  unless  the  proceedings  are 
socrpt.  The  holding  of  a  secret  session  by  either  house  is  in 
its  discretion.     (Nugent's  Case,  1  Am.  L.  J.,  N.  S.,  139.) 


Art.  IV,  §  11       CONSTITUTION  OF  1879.  122 

The  journals  required  by  law  to  be  kept  are  a  record  of 
the  proceedings  of  the  houses  of  the  legislature,  and  so  in- 
tended. They  are,  to  all  intents  and  purposes,  records  made  in 
perpetuam  memoriam  rei,  there  entered.  (Oakland  Pav.  Co.  v. 
Hilton,  69  Cal.  479,  11  Pac.  3.) 

The  decisions  in  the  various  states  are  conflicting  as  to  how 
far,  if  at  all,  the  journals  of  the  legislature  may  be  resorted 
to  in  order  to  determine  whether  or  not  an  act  was  properly 
passed;  but  in  this  state  it  is  held  that  the  validity  of  a  stat- 
ute, which  has  been  duly  certified,  approved,  enrolled,  and  de- 
posited in  the  office  of  the  secretary  of  state,  cannot  be  im- 
peached by  a  resort  to  the  journals  of  the  legislature.  (Yolo 
Co.  V.  Colgan,  132  Cal.  265,  84  Am.  St.  Eep.  41,  64  Pac.  403; 
People  V.  Harlan,  133  Cal.  16,  65  Pac.  9.) 

The  court  takes  judicial  notice  of  the  proceedings  had  in  the 
legislature  and  entered  upon  its  journals.  (French  v.  Senate, 
146  Cal.  604,  80  Pac.  1031,  2  Ann.  Cas.  756.) 

Privilege  of  members. 

SeG.  11.  Members  of  the  legislature  shall,  in  all 
eases,  except  treason,  felony,  and  breach  of  the  peace,  be 
privileged  from  arrest,  and  shall  not  be  subject  to  any 
civil  process  during  the  session  of  the  legislature,  nor  for 
fifteen  days  next  before  the  commencement  and  after 
the  termination  of  each  session, 

PRIVILEGE  FHOM  AEREST.— Arrest  implies  corporate  re- 
straint.    (Wooley  V.  Butler,  1  Bank.  L.  T.  35.) 

This  privilege  extends  to  judicial  as  well  as  mesne  process, 
and  a  person  arrested  is  entitled  to  his  discharge  on  the  priv- 
ilege afterward  acquired.  (Coxe  v.  McClenachan,  3  Dall.  478, 
1  L.  Ed.  687;  Nones  v.  Edsall,  1  Wall.  Jr.  189,  Fed.  Cas.  No. 
10,290.) 

There  is  no  privilege  from  the  service  or  obligation  of  a  sub- 
poena in  a  criminal  case.  (United  States  v.  Cooper,  4  Dall. 
341,  1  L.  Ed.  859,  Fed.  Cas.  No.  14,861.) 

Members  are  privileged  not  only  from  arrest,  but  also  from 
a  service  of  summons  or  other  civil  process  while  in  attendance 


123  CONSTITUTION  OP  1879.     Art.  IV,  §§  12-14 

on  their  public  duties.  (Coxe  v.  MeClcnaclian,  3  Dall.  478,  1 
L.  Ed.  687;  Geyer  v.  Irwin,  4  Dall.  107,  1  L.  Ed.  762j  Nonea 
V.  Edsall,  1  Wall.  Jr.  191,  Fed.  Cas.  No.  10,290.) 

Vacancies,  how  filled. 

Sec.  12.  When  vacancies  occur  in  either  house,  tho 
governor,  or  the  person  exercising  the  functions  of  the 
governor,  shall  issue  writs  of  election  to  fill  such 
vacancies. 

VACANCIES  may  be  created  by  death,  resignation,  or  re- 
n:oval,  or  by  the  acceptance  of  an  incompatible  office.  (People 
V.  Carrique,  2  Hill,  93;  Powell  v.  Wilson,  l(i  Tex.  GO;  Biencourt 
V.  Parker,  27  Tex.  558.) 

A  resignation  sent  to  the  governor  of  a  state  is  sufficient. 
(Edward's  Case,  Clark  &  H.  92;  Mercer's  Case,  Clark  &  H.  44; 
Bledsoe's  Case,  Clark  &  H.  869.) 

The  executive  may  issue  writs  for  a  new  election  without 
waiting  to  be  informed  by  the  house  that  a  vacancy  exists. 
(Mercer's  Case,  Clark  &  H.  44.) 

Open  doors  and  secret  sessions. 

Sec.  13.  The  doors  of  each  house  shall  be  open,  ex- 
cept on  such  occasions  as,  in  the  opinion  of  the  house, 
may  require  secrecy. 

Adjournment,  how  long  and  where  to. 

See.  1-4.  Neither  house;  shall,  without  the  consent  of 
the  other,  adjourn  for  more  than  three  days,  nor  to  any 
place  other  tlian  that  in  which  they  may  be  sitting.  Nor 
shall  the  members  of  either  house  draw  pay  for  any  recess 
or  adjournment  for  a  longer  time  than  three  days. 


Art.  IV,  §  15       CONSTITUTION  OF  1879.  124 

ADJOURNMENT. — An  adjournment  of  the  house  for  more 
than  three  days  without  the  concurrence  of  the  senate  does  not 
ipso  facto  work  a  dissolution  of  the  general  assembly.  (West 
Phil.  Pass.  E.  E.  Co.  v.  Union  Pass.  E.  Co.,  4  Leg.  Gaz.  193,  29 
Leg.  Int.  196.) 

Origin  and  passage  of  bills. 

Sec.  15.  No  law  shall  be  passed  except  by  bill.  Nor 
shall  any  bill  be  put  upon  its  final  passage  until  the  same, 
with  the  amendments  thereto,  shall  have  been  printed 
for  the  use  of  the  members ;  nor  shall  any  bill  become  a 
law  unless  the  same  be  read  on  three  several  days  in  each 
house,  unless,  in  case  of  urgency,  two-thirds  of  the  house 
where  such  bill  may  be  pending  shall,  by  a  vote  of  yeas 
and  nays,  dispense  with  this  provision.  Any  bill  may 
originate  in  either  house,  but  may  be  amended  or  re- 
jected by  the  other;  and  on  the  final  passage  of  all  bills 
they  shall  be  read  at  length,  and  the  vote  shall  be  by 
yeas  and  nays  upon  each  bill  separately,  and  shall  be 
entered  on  the  journal;  and  no  bill  shall  become  a  law 
without  the  concurrence  of  a  majority  of  the  members 
elected  to  each  house. 

PASSAGE  OF  BILLS.— The  word  "read"  is  used  in  this  sec- 
tion in  its  popular,  and  not  in  its  technical,  sense,  and  means 
read  at  length,  and  not  read  as  is  usual  in  parliamentary  bodies. 
(Weill  V.  Kenfield,  5-i  Cal.  111.) 

It  is  not  essential  to  the  validity  of  a  statute  that  it  should 
affirmatively  appear  from  the  legislative  journals  that  every 
act  required  by  the  constitution  to  be  done  in  the  enactment 
of  a  law  has  been  done;  nor  will  it  be  presumed,  in  the  absence 
of  a  showing,  that  such  acts  were  not  done.  (People  v.  Dunn, 
80  Cal.  211,  13  Am.  St.  Eep.  118,  22  Pac.  140;  Hale  v.  McGet- 
tigan,  114  Cal.  112,  45  Pac.  1049.) 


125  CONSTITUTION  OF  1879.        Art.  IV,  §  16 

If  an  act  is  properly  enrolled  and  authenticated,  and  is  de- 
posited with  the  secretary  of  state,  it  is  conclusive  evidence 
of  the  legislative  will,  and  courts  will  not  look  into  the 
journals  of  the  legislature  to  see  whether  or  how  the  bill 
passed.  (People  v.  Burt,  43  Cal.  560;  Yolo  Co.  v.  Colgan,  132 
Cal.  265,  84  Am.  St.  Rep.  81,  64  Pac.  403;  People  v.  Harlan, 
133    Cal.   16,    65    Pac.    9.) 

A  resolution  adopted  by  a  two-thirds  vote,  declaring  that 
a  number  of  specified  bills  "present  cases  of  urgency,"  and 
that  the  provision  of  the  constitution  "recpiiriug  that  the  bill 
be  read  on  three  separate  days  in  each  house  is  hereby  dis- 
pensed with,"  is  sufficient,  and  it  is  not  objectionable  on  the 
ground  that  it  includes  more  than  one  bill.  (People  v.  Glenn 
Co.,  100  Cal.  419,  38  Am.  St.  Rep.  305,  35  Pac.  302.) 

The  fact  that  several  of  the  senators  who  voted  to  declare 
a  bill  a  case  of  urgency  afterward  voted  against  the  bill  is 
immateriaL  (People  v.  Glenn  Co.,  100  Cal.  419,  38  Am.  St. 
Rep.  305,  35  Pac.  302.) 

Approval  and  return  of  bills — Passage  over  veto. 

Sec.  16.  Every  bill  which  may  have  passed  the  legis- 
lature shall,  before  it  becomes  a  law,  be  presented  to  the 
governor.  If  he  approve  it,  he  shall  sign  it;  but  if  not, 
he  shall  return  it,  with  his  objections,  to  the  house  in 
which  it  originated,  which  shall  enter  such  objections 
upon  the  journal  and  proceed  to  reconsider  it.  If  after 
such  reconsideration,  it  again  pass  both  houses,  by  yeas 
and  nays,  two-thirds  of  the  members  elected  to  each 
house  voting  therefor,  it  shall  become  a  law,  notwith- 
standing the  governor's  objections.  If  any  bill  shall  not 
be  returned  within  ten  days  after  it  shall  have  been  pre- 
sented to  him  (Sundays  excepted),  the  same  shall  be- 
come a  law  in  like  manner  as  if  he  had  signed  it,  unless 
the  legislature,  by  adjournment,  prevents  such  return,  in 


Art.  IV,  §  16        CONSTITUTION  OF  1879.  126 

which  case  it  shall  not  become  a  law,  unless  the  governor, 
Avithin  thirty  days  after  such  adjournment  (Sundays  ex- 
cepted), shall  sign  and  deposit  the  same  in  the  office  of 
the  secretary  of  state,  in  which  case  it  shall  become  a  law 
in  like  manner  as  if  it  had  been  signed  by  him  before 
adjournment.  If  any  bill  presented  to  the  governor  con- 
tains several  items  of  appropriation  of  money,  he  may 
object  to  one  or  more  items,  while  approving  other  por- 
tions of  the  bill.  In  such  case  he  shall  append  to  the  bill 
at  the  time  of  signing  it,  a  statement  of  the  items  to 
which  he  objects,  and  the  reasons  therefor,  and  the  ap- 
propriation so  objected  to  shall  not  take  effect  unless 
passed  over  the  governor's  veto,  as  hereinbefore  pro- 
vided. If  the  legislature  be  in  session,  the  governor  shall 
transmit  to  the  house  in  which  the  bill  originated  a  copy 
of  such  statement,  and  the  items  so  objected  to  shall  be 
separately  reconsidered  in  the  same  manner  as  bills 
which  have  been  disapproved  by  the  governor.  (Amend- 
ment adopted  November  3,  1908.) 

[ORIGINAL  SECTION.] 
Sec.  16.  Every  bill  which  may  have  passed  the  legislature 
shall,  before  it  becomes  a  lavv^,  be  presented  to  the  governor. 
If  he  approve  it,  he  shall  sign  it;  but  if  not,  he  shall  return 
it,  with  his  objections,  to  the  house  in  which  it  originated, 
which  shall  enter  such  objections  upon  the  journal  and  pro- 
ceed to  reconsider  it.  If,  after  such  reconsideration,  it  3ga:n 
pass  both  houses,  by  yeas  and  nays,  two-thirds  of  the  members 
elected  to  each  house  voting  therefor,  it  shall  become  a  law, 
notwithstanding   the   governor's    objections.     If    any   bill   shall 


127  CONSTITUTION  OF  1879.        Art.  IV,  §  16 

not  be  returned  within  ten  days  after  it  shall  have  been  pre- 
sented to  him  (Sundays  excepted),  the  same  shall  become 
a  law  in  like  manner  as  if  he  had  signed  it,  unless  the  legis- 
lature, by  adjournment,  prevents  such  return,  in  which  case 
it  shall  not  become  a  law,  unless  the  governor,  within  ten 
days  after  such  adjournment  (Sundays  excepted),  shall  sign 
and  deposit  the  same  in  the  office  of  the  secretary  of  state, 
in  which  case  it  shall  become  a  law  in  like  manner  as  if  it 
had  been  signed  by  him  before  adjournment.  If  any  bill  pre- 
sented to  the  governor  contains  several  items  of  appropriation 
of  money,  he  may  object  to  one  or  more  items,  while  approving 
other  portions  of  the  bill.  In  such  case  he  shall  append  to 
the  bill,  at  the  time  of  signing  it,  a  statement  of  the  items 
to  which  he  objects,  and  the  reasons  therefor,  and  the  appro- 
priation so  objected  to  shall  not  take  effect  unless  passed  over 
the  governor's  veto,  as  hereinbefore  provided.  If  the  legis- 
lature be  in  session,  the  governor  shall  transmit  to  the  house 
in  which  the  bill  originated  a  copy  of  such  statement,  and 
the  items  so  objected  to  shall  be  separately  reconsidered  in 
the  same  manner  as  bills  which  have  been  disapproved  by  the 
governor. 

APPROVAL  BY  THE  GOVERNOR.— The  day  upon  which 
the  bill  is  presented  to  the  governor  should  be  excluded.  (Price 
V.  Whitman,  8  Cal.  412;  Iron  Mountain  Co.  v.  Haight,  39 
Cal.   540.) 

In  People  v.  Whitman,  6  Cal.  659,  it  was  held  that  only 
where  the  last  day  fell  upon  a  Sunday  should  Sundays  be  ex- 
cepted in  making  the  computation;  but  this  case  was  over- 
ruled in  the  case  of  Price  v.  Whitman,  8  Cal.  412,  it  having 
been  decided  upon  an  error  in  the  printed  copy  of  the  con- 
stitution, the  word  "Sundays"  being  used  in  the  singular. 

A  law  is  not  finally  passed  until  it  is  approved  by  the 
governor  and  transmitted  by  him  to  the  secretary  of  state. 
(Davis  v.  Whidden,  117  Cal.  618,  49  Pac.  766.) 

Where  inconsistent  acts  are  approved  on  the  same  day,  it 
is  to  be  presumed  that  they  were  published  in  the  chronological 


Art.  IV,  §  17        CONSTITUTION  OF  1879.  123 

order  of  tlieir  approval;  but  the  court  will  take  judicial  notice 
of  the  time  of  the  approval  of  each  act,  and  may  resort  to 
the  office  of  the  secretary  of  state  to  learn  the  exact  time 
thereof.     (Davis  v.   Whidden,  117   Cal.   618,   49  Pac.   766.) 

Where  an  act  purports  to  have  been  approved  by  the  gov- 
ernor on  the  last  day  of  the  session,  parol  evidence  is  admis- 
sible to  show  that  in  fact  it  was  approved  on  the  succeeding 
day.     (Fowler   v.  Peirce,   2   Cal.   165.) 

Where  a  statute  is  declared  to  take  effect  from  and  after 
its  passage,  it  takes  effect  at  the  very  moment  of  its  approval 
by  the  governor.     (People  v.  Clark,  1  Cal.  406.) 

An  act  approved  by  the  governor  after  the  adjournment  of 
the  legislature  was  void  under  the  former  constitution.  (Fow- 
ler V.  Peirce,  2  Cal.   165.) 

When  exercising  the  powers  of  approving  or  disapproving 
bills,  the  governor  is  a  special  agent  with  limited  powers,  and 
can  act  only  in  the  specified  mode  and  can  exercise  only  the 
granted  powers.     (Lukens  v.  Nye,  156  Cal.  498,  105  Pac.  593.) 

Impeachments,  presentment  and  trial  of. 

Sec.  17.  The  assembly  shall  have  the  sole  power  of 
impeachment,  and  all  impeachments  shall  be  tried  by  the 
senate.  When  sitting  for  that  purpose,  the  senators 
shall  be  upon  oath  or  affirmation,  and  no  person  shall  be 
convicted  without  the  concurrence  of  two-thirds  of  the 
members  elected. 

IMPEACHMENT.— A  member  of  the  house  voting  for  the 
prosecution  of  an  impeachment  is  not  thereby  rendered  dis- 
qualified, if  subsequently  elected  to  the  senate,  from  sitting 
on  a  trial  thereof.     (Addison's  Trial,  21-28;  Porter's  Trial,  o."!.) 

All  the  functions  of  the  governor  are  entirely  suspended, 
during  his  trial.      (Opinion  of  Judges,  3  Neb.  463.) 

For  an  impeachment  to  be  effectual,  the  articles  must  be 
presented  to  the  senate,  and  a  constitutional  quorum  of  tho. 
entire  membership  must  receive  it.  (Opinion  of  Justices,  12 
Fla.   653.) 


129  CONSTITUTION  OF  1879.       Art.  IV,  §  18 

What  officers  liable  to  impeachment — Judgment  on. 

Sec.  18.  The  governor,  lieutenant-governor,  secre- 
tary of  state,  controller,  treasurer,  attorney  general, 
surveyor  general,  chief  justice  and  associate  justices 
of  the  supreme  court,  judges  of  the  district  court  of 
appeal,  and  judges  of  the  superior  courts,  shall  be  lia- 
ble to  impeachment  for  any  misdemeanor  in  office ;  but 
judgment  in  such  cases  shall  extend  only  to  removal 
from  office,  and  disqualification  to  hold  any  office  of 
honor,  trust,  or  profit  under  the  state ;  but  the  party 
convicted  or  acquitted  shall  nevertheless  be  liable  to 
indictment,  trial,  and  punishment  according  to  law. 
All  other  civil  officers  shall  be  tried  for  misdemeanor 
in  office  in  such  manner  as  the  legislature  may  provide. 
(Amendment  approved  October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  18.  The  governor,  lieutenant-governor,  secretary  of  state, 
controller,  treasurer,  attorney  general,  surveyor  general,  chief 
justice  and  associate  justices  of  the  supreme  court,  and  judges 
of  the  superior  courts,  shall  be  liable  to  impeachment  for  any 
misdemeanor  in  office;  but  judgment  in  such  cases  shall  extend 
only  to  removal  from  office,  and  disqualification  to  hold  any 
office  of  honor,  trust,  or  profit  under  the  state;  but  the  party 
convicted  or  acquitted  shall  nevertheless  be  liable  to  indictment, 
trial,  and  punishment  according  to  law.  All  other  civil  officers 
shall  be  tried  for  misdemeanor  in  office  ia  such  manner  as  the 
legislature  may  provide. 
Constitution — 9 


Art.  IV,  §  19        CONSTITUTION  OF  1879.  130 

REMOVAL  OF  OFFICERS.— This  section  gives  to  the  legis- 
lature power  to  provide  for  the  removal  of  officers  without  a 
jur^-  trial.     (Woods  v.  Varnum,  85  Cal.  639,  24  Pac.  843.) 

The  supreme  court  has  no  jurisdiction  of  an  appeal  from  a 
judgment  in  a  proceeding  under  section  772  of  the  Penal  Code 
for  the  removal  of  public  officers,  the  legislature  not  having 
provided  for  such  jurisdiction.  (In  re  Curtis,  108  Cal.  661,  41 
Pac.  793.) 

The  act  of  1853  entitled  "An  act  to  prevent  extortion  in 
office  and  to  enforce  official  duty,"  held  valid.  (Matter  of 
Marks,  45  Cal.  199.) 

While  the  constitution  has  provided  for  the  impeachment 
of  certain  officers,  it  has  left  all  other  civil  officers  to  be  tried 
for  misdemeanors  in  such  manner  as  the  legislature  may  pro- 
vide.    (Matter  of   Marks,   45   Cal.   199.) 

A  presiding  judge  is  liable  to  impeachment  for  preventing 
an  associate  judge  from  delivering  his  opinion  to  a  grand 
or  petit  jury  upon  a  matter  before  the  court.  (Addison's  Trial, 
114,  151;  Commonwealth  v.  Addison,  4  Dall.  225,  1  L.  Ed.  810; 
Porter's  Trial,  61.) 

A  public  officer  who  refuses  to  enforce  the  law  forbidding 
gambling  is  guilty  of  "misdemeanor  in  office."  (Coffey  v. 
Superior  Court,  147  Cal.  525,  82  Pac.   75.) 

Sections  758  and  following  of  the  Penal  Code  do  not  pro- 
vide for  the  removal  of  public  officers  by  indictment,  and  the 
people  have  no  appeal  from  an  order  sustaining  a  demurrer 
to  the  accusation.  (Matter  of  Burleigh,  145  Cal.  35,  78  Pac. 
242.) 

Member  ineligible  to  office  created  during  the  term. 

Sec.  19.  No  senator  or  member  of  assembly  shall, 
during  the  term  for  which  he  shall  have  been  elected,  be 
appointed  to  any  civil  office  of  profit  under  this  state 
which  shall  have  been  created,  or  the  emoluments  of 
which  have  been  increased,  during  such  term,  except  such 
offices  as  may  be  filled  by  election  by  the  people. 


131  CONSTITUTION  OF  1879.        Art.  IV,  §  20 

OFFICES. — This  section  does  not  inhibit  the  appointment 
of  a  member  of  the  legislature  to  the  office  of  harbor  com- 
missioner, which  office  was  not  created,  nor  the  emoluments 
thereof  increased,  during  his  term  of  office — the  method  of  fill- 
ing, the  duties  and  functions  of  the  office  alone  being  changed. 
(People  V.  Burns,  53   Cal.  6G0.) 

This  section  does  not  disqualify  a  member  of  the  legislature 
from  holding  an  office,  the  emoluments  of  which  are  increased 
during  his  legislative  term,  but  after  his  election  to  such  office. 
(State  V.  Boyd,  21   Wis.   208.) 

Who  ineligible  to  office  under  state  government — Pro- 
viso. 

Sec.  20.  No  person  holding  any  lucrative  office  under 
the  United  States,  or  any  other  power,  shall  be  eligible 
to  any  civil  office  of  profit  under  this  state ;  provided, 
that  officers  in  the  militia,  who  receive  no  annual  salary, 
local  officers,  or  postmasters  w'hose  compensation  does  not 
exceed  five  hundred  dollars  per  annum,  shall  not  be 
deemed  to  hold  lucrative  offices. 

OFFICE  OF  PROFIT.— The  words  "lucrative  office"  in  the 
proviso  of  this  section  refer  solely  to  the  office  under  the 
United  States;  and  if  the  salary  of  that  oflice  exceeds  five 
hundred  dollars  per  annum,  its  incumlient  cannot  hold  any 
civil  office  of  profit  under  the  state,  notwithstanding  the  profit 
of  the  state  office  is  less  than  five  hundred  dollars  per  annum. 
(People  V.  Leonard,  73   Cal.  230,   14  Pac.   S53.) 

The  federal  office  of  surveyor  general  is  a  "lucrative  office," 
and  the  oflice  of  controller  of  slate  an  "office  of  profit."  (Peo- 
I)le  V.  Whitman,  10  Cal.  38.) 

The  office  of  school  superintendent  of  a  county  is  a  civil 
office.      (Crawford  v.   Dunbar,  52  Cal.  30.) 

The  office  of  inspector  of  customs  in  a  collection  district, 
to  wiiich  there  is  annexed  a  salary  of  one  thousand  dollars 
per  aunum,  is  a  lucrative  office,  (Crawford  v.  Dunbar,  52  Cal. 
36.) 


Art.  IV,  §  21        CONSTITUTION  OF  1879.  132 

A  retired  army  officer  does  not  hold  a  lucrative  "office" 
within  the  meaning  of  this  section.  (Eeed  v.  Schon,  2  Cal. 
App.  55,  83  Pac.  77.) 

To  constitute  a  holding,  the  officer  must  be  appointed  and 
qualify  by  giving  a  bond  and  taking  the  oath  of  office;  and 
one  who  has  not  so  qualified  under  a  federal  appointment  is 
eligible  to  office  in  this  state.  (Peoj^le  v.  Whitman,  10  Cal. 
38.) 

This  section  applies  to  incumbents  de  facto  of  a  lucrative 
office.     (Crawford  v.  Dunbar,  52  Cal.  36.) 

This  section  refers  to  the  power  to  hold  as  well  as  to  be 
elected  to  office;  consequently,  a  person  duly  eligible  and 
elected  to  a  civil  office  of  profit  under  the  state  cannot  hold 
the  office  after  he  has  accepted  a  lucrative  federal  office. 
(People  V.  Leonard,  73  Cal.  230,  14  Pac.  853.) 

"Eligible"  means  capable  of  being  chosen — the  subject  of 
selection  or  choice;  and  "compensation"  means  the  income  of 
the  office,  not  its  profits.     (Searcy  v.  Grow,  15  Cal.  117.) 

If  a  member  at  the  time  of  his  election  hold  a  discpialifying 
office,  it  is  sufficient  that  he  qualify  himself  by  a  resignation 
of  it  before  he  is  sworn  in.  (Commonwealth  v.  Pyle,  18  Pa. 
519.) 

The  appointment  to  a  second  incompatible  ofiice  is  not  abso- 
lutely void,  but  the  first  office  is  ipso  facto  vacated.  (People 
V.  Carrique,  2  Hill,  93;  Biencourt  v.  Parker,  27  Tex.  558.) 

A  person  holding  two  compatible  offices  is  not  precluded 
from  holding  the  salaries  of  both.  (Converse  v.  United  States, 
21  How.  (U.  S.)  4C3,  16  L.  Ed.  192;  Brown's  Case,  9  Op.  Atty. 
Gen.  508.) 

Embezzlement  or  defalcation — Penalty  for. 

Sec.  21.  No  person  convicted  of  the  embezzlement 
or  defalcation  of  the  public  funds  of  the  United  States, 
or  of  any  state,  or  of  any  county  or  municipality  therein, 
shall  ever  be  eligible  to  any  office  of  honor,  trust,  or  profit 
under  this  state,  and  the  legislature  shall  provide,  by  lav/, 


133  CONSTITUTION  OF  1879.        Art.  IV,  §  22 

for  tlie  punisliment  of  embezzlement  or  defalcation  as  a 
felony. 

Public  moneys  and  accounts — Statement  of  receipts  and 
expenditures — Panama-Pacific  International  Ex- 
position. 

Sec.  22.  No  money  shall  be  drawn  from  the  treasury 
but  in  c*)nsequence  of  appropriations  made  by  law,  and 
upon  warrants  duly  drawn  thereon  by  the  controller; 
and  no  money  shall  ever  be  appropriated  or  drawn  from 
the  state  treasury  for  the  purpose  or  benefit  of  any  cor- 
poration, association,  asylum,  hospital,  or  any  other  in- 
stitution not  under  the  exclusive  management  and  con- 
trol of  the  state  as  a  state  institution,  nor  shall  any  grant 
or  donation  of  property  ever  be  made  thereto  by  the 
state;  provided,  that  notwithstanding  anything  con- 
tained in  this  or  any  other  section  of  this  constitution, 
the  legislature  shall  have  the  power  to  grant  aid  to  the 
institutions  conducted  for  the  support  and  maintenance 
of  minor  orphans,  or  half  orphans,  or  abandoned  chil- 
dren, or  aged  persons  in  indigent  circumstances— such 
aid  to  be  granted  by  a  uniform  rule,  and  proportioned  to 
the  number  of  inmates  of  such  respective  institutions; 
provided,  further,  that  the  state  shall  have  at  any  time 
the  right  to  inquire  into  the  management  of  such  in- 
stitution; provided,  further,  that  whenever  any  eounty, 
or  city  and  county,  or  city,  or  town,  shall  provide  for 
the   support    of   minor   orphans,    or   half    orphans,    or 


Art.  IV,  §  22        CONSTITUTION  OF  1879.  134 

abandoned  cliildren,  or  aged  persons  in  indigent  circum- 
stances, such  county,  city  and  county,  city,  or  town  shall 
be  entitled  to  receive  the  same  pro  rata  appropriations  as 
may  be  granted  to  such  institutions  under  church  or  other 
control.  An  accurate  statement  of  the  receipts  and  ex- 
penditures of  public  moneys  shall  be  attached  to  and 
published  with  the  laws  at  every  regular  session  of  the 
legislature. 

Provided,  however^  that  for  the  purpose  of  raising  five 
million  dollars  ($5,000,000),  to  be  used  in  establishing, 
maintaining,  and  supporting  in  the  city  and  county  of 
San  Francisco,  state  of  California,  an  exposition  in  com- 
memoration of  the  completion  of  the  Panama  canal,  to  be 
known  as  the  Panama-Pacific  International  Exposition, 
the  state  board  of  equalization  shall,  for  the  fiscal  year 
beginning  July  1,  1911,  and  for  each  fiscal  year  there- 
after, to  and  including  the  fiscal  year  beginning  July  1, 
1914,  fix,  establish,  and  levy  such  an  ad  valorem  rate 
of  taxation,  as  when  levied  upon  all  the  taxable  property 
in  the  state,  after  making  due  allowance  for  delinquency, 
shall  produce  for  each  of  such  fiscal  years  a  sum  of  cue 
million  two  hundred  and  fifty  thousand  dollars  ($1,250.- 
000).  The  said  taxes  shall  be  levied,  assessed,  and  col- 
lected upon  every  kind  and  character  of  property  in  the 
state  of  California  not  exempt  from  taxation  under  the 
law,  and  subject  to  taxation  on  the  1st  day  of  July,  1910, 
and  in  the  same  manner,  and  by  the  same  method,  as 
other   state    taxes   were   levied,    assessed,    and   collected 


135  CONSTITUTION  OF  1879.        Art.  IV,  §  22 

under  the  law,  as  the  same  existed  on  the  1st  day  of  July, 
1910.  The  state  board  of  equalization  shall  each  year, 
at  the  time  it  determines  the  amount  or  revenue  required 
for  other  state  purposes,  determine,  fix,  and  include  the 
rate  of  tax  necessary  to  raise  the  revenue  herein  pro- 
vided for. 

There  is  hereby  created  in  the  state  treasury  a  fund  to 
be  known  as  the  Panama-Pacific  International  Exposi- 
tion fund,  and  all  moneys  collected  pursuant  to  this 
provision,  after  deducting  the  proportionate  share  of  the 
expense  for  the  collection  of  the  same,  shall  be  paid  into 
the  state  treasury,  and  credited  to  such  fund.  All 
moneys  so  paid  into  such  fund  are  hereby  appropriated, 
without  reference  to  fiscal  years,  for  the  use,  establish- 
ment, maintenance,  and  support  of  said  Panama-Pacific 
International  Exposition.  No  tax,  license  fee,  or  charge 
of  any  kind  or  character  shall  ever  be  levied  or  assessed 
or  charged  against  any  property  of  said  Panama-Pacific 
International  Exposition,  or  against  any  property  used 
as  exhibit  therein,  while  being  used  or  exhibited  in  con- 
nection therewith. 

There  is  hereby  created  a  commission  to  be  known  as 
the  Panama-Pacific  International  Exposition  Commis- 
sion of  the  state  of  California,  which  shall  consist  of  the 
governor  of  said  state  and  four  other  members  to  be 
appointed  by  the  governor,  by  and  with  the  advice  and 
consent  of  the  senate  of  said  state.  The  governor  shall 
have  the  power  to  fill  all  vacancies  occurring  at  any  time 


Art.  IV,  §  22        CONSTITUTION  OF  1879.  136 

in  said  commission.  The  members  of  said  commission 
shall  receive  no  compensation  and  shall  hold  office  until 
such  exposition  shall  have  been  closed  and  its  affairs 
settled.  Said  four  members  of  said  commission  shall  be 
selected  from  different  sections  of  the  state,  and  the  ap- 
pointment thereof  shall  be  made  by  the  governor  of  the 
state  during  the  month  of  February,  1911.  The  commis- 
sion hereby  created  shall  have  the  exclusive  charge  and 
control  of  all  moneys  paid  into  the  Panama-Pacific  In- 
ternational Exposition  fund;  and  provided  further  that 
the  legislature  shall  pass  all  laws  necessary  to  carry  out 
the  provisions  of  this  act,  including  the  times  and  the 
manner  in  which  and  the  terms  and  conditions  upon  which 
money  shall  be  drawn  from  the  state  treasury  by  said 
commission ;  where  contracts  and  vouchers  shall  be 
filed;  to  whom  and  how  often  reports  shall  be  made; 
what  disposition  shall  be  made  of  any  sum  left  unex- 
pended or  received  from  the  sale  of  any  property  or 
buildings  purchased  or  constructed  by  said  commission 
for  the  use  of  said  exposition,  or  of  any  disposition  of 
any  building  or  improvement  constructed  by  said  com- 
mission out  of  said  fund,  and  to  provide  for  the  transfer 
to  the  general  fund  of  the  state  of  California  of  any 
portion  of  said  Panama-Pacific  International  Exposition 
fund  unused. 

The  commission  herein  created  is  authorized  and 
directed  to  make  such  proper  contracts  with  the  Panama- 
Pacific  International  Exposition  Company,  a  corporation 


137  CONSTITUTION  OF  1879.        Art.  IV,  §  22 

organized  under  the  laws  of  the  state  of  California  on 
the  22d  day  of  March,  1910,  as  will  entitle  the  state  of 
California  to  share  proportionately  with  the  contributors 
to  the  said  Panama-Pacific  International  Exposition  in 
the  returns  from  the  holding  of  said  exposition  at  the 
city  and  county  of  San  Francisco.  (Amendment  adopted 
November  8,  1910.) 

[OEIGINAL  SECTION.] 
Sec.  22.  No  money  shall  be  drawn  from  the  treasury  but 
in  consequence  of  appropriations  made  by  law,  and  upon  war- 
rants duly  drawn  thereon  by  the  controller;  and  no  money 
shall  ever  be  appropriated  or  drawn  from  the  state  treasury 
for  the  use  or  benefit  of  any  corporation,  association,  asylum, 
hospital,  or  any  other  institution  not  under  the  exclusive  man- 
agement and  control  of  the  state  as  a  state  institution,  nor 
shall  any  grant  or  donation  of  property  ever  be  made  thereto 
by  the  state;  provided,  that  notwithstanding  anything  con- 
tained in  this  or  any  other  section  of  this  constitution,  the 
legislature  shall  have  the  power  to  grant  aid  to  institutions 
conducted  for  the  support  and  maintenance  of  minor  orphans, 
or  half  orphans,  or  abandoned  children,  or  aged  persons  in  in- 
digent circumstances — such  aid  to  be  granted  by  a  uniform 
rule,  and  proportioned  to  the  number  of  inmates  of  such  re- 
spective institutions;  provided  further,  that  the  state  shall 
have,  at  any  time,  the  right  to  inquire  into  the  management  of 
such  institutions;  provided  further,  that  whenever  any  county, 
or  city  and  county,  or  city,  or  town  shall  provide  for  the  sup- 
port of  minor  orphans,  or  half  orphans,  or  abandoned  children, 
or  aged  persons  in  indigent  circumstances,  such  county,  city 
and  county,  city,  or  town  shall  be  entitled  to  receive  the  same 


Art.  IV,  §  22        CONSTITUTION  OF  1879.  138 

pro  rata  appropriations  as  may  be  granted  to  such  institutions 
under  church  or  other  control.  An  accurate  statement  of  the 
receipts  and  expenditures  of  public  moneys  shall  be  attached  to 
and  published  with  the  laws  at  every  regular  session  of  the 
legislature. 

APPROPRIATIONS.— No  money  can  be  drawn  from  the 
treasury  but  in  consequence  of  appropriations  made  by  law. 
(Baggett  V.  Dunn,  69  Cal.  75,  10  Pac.  125.) 

To  an  appropriation  nothing  more  is  requisite  than  a  desig- 
nation of  the  amount  and  fund  out  of  which  it  shall  be  paid. 
It  is  not  essential  to  its  validity  that  funds  to  meet  the  same 
shall  be  at  the  time  in  the  treasury.  (MeCauley  v.  Brooks,  16 
Cal.  11.) 

This  provision  is  designed  only  to  secure  to  the  legislative 
department  the  exclusive  power  of  deciding  to  what  purpose 
the  public  funds  shall  be  devoted  in  each  fiscal  year,  and  no 
particular  form  of  legislative  words  is  required  to  make  an  ap- 
propriation valid.      (Humbert  v.  Dunn,  84  Cal.  57,  24  Pac.  111.) 

This  provision  does  not  prohibit  the  legislature  from  appro- 
priating its  funds  in  time  of  war  to  aid  a  corporation  in  the 
construction  of  a  railroad  to  be  used  by  the  state  for  military 
purposes.      (People  v.  Pacheco,  27  Cal.  175.) 

There  is  no  restriction  as  to  the  time  for  which  appropria- 
tions may  be  made.     (People  v.  Pacheco,  27  Cal.  175.) 

The  provision  of  this  section  giving  counties,  cities,  and 
towns  the  same  pro  rata  amounts  granted  by  the  legislature  to 
private  institutions  is  self-executing,  and  where  the  legislature 
grants  such  aid  to  private  institutions,  such  counties,  cities, 
and  towns  become  entitled  to  the  same  aid.  (Yolo  Co.  v.  Dunn, 
77  Cal.  133,  19  Pac.  262;  San  Francisco  v.  Dunn,  69  Cal.  73,  10 
Pac.  191.)    - 

An  act  appropriating  three  hundred  thousand  dollars  to  meet 
the  expenses  of  erecting  buildings  and  maintaining  an  exhibit 
of  the  products  of  the  state  at  the  World's  Fair  at  Chicago,  and 
providing  that  the  appropriation  should  be  expended  under  the 
exclusive  charge  of  a  commission  appointed  by  the  governor, 
is  not  in  conflict  with  this  provision.  (Daggett  v.  Colgan,  92 
Cal.  53,  27  Am.  St.  Rep.  95,28  Pac.  51,  14  L.  R.  A.  474.) 

An  act  creating  an  office  and  providing  that  the  officer  "shall 
receive  a  salary  of  two  thousand  four  hundred  dollars  per  an- 


139  CONSTITUTION  OF  1879.        Art.  IV,  §  22 

nam,  payable  monthly,  ....  to  be  paid  out  of  any  money  in 
the  state  treasury  not  otherwise  appropriated,"  is  sufficient  to 
show  an  intention  to  appropriate  such  sum.  (Humbert  v. 
Dunn,  84  Cal.  57,  24  Pac.  111.) 

An  act  providing  for  the  commitment  of  minor  criminals  to 
nonsectarian  charitable  corporations,  the  expense  of  mainte- 
nance to  be  paid  by  the  county,  is  not  in  violation  of  this  sec- 
tion, since  it  only  applies  to  the  state  treasury.  (Boys'  &  Girls' 
Aid  Soc.  V.  Eeis,  71  Cal.  627,  12  Pac.  796.) 

A  law  providing  for  the  payment  of  a  salary  "out  of  any 
money  in  the  general  fund  not  otherwise  appropriated,"  only 
applies  to  the  money  subject  to  appropriation  by  that  legisla- 
ture and  not  to  some  subsequent  legislature.  (Baggett  v.  Dunn, 
69  Cal.  75,  10  Pac.  125.) 

An  act  attempting  retroactively  to  exempt  resident  nephews 
and  nieces  from  the  payment  of  unpaid  taxes  upon  collateral 
inheritances  is  in  violation  of  this  section.  (Estate  of  Stan- 
ford, 126  Cal.  112,  54  Pac.  259,  58  Pac.  462,  45  L.  E.  A.  788.) 

The  act  of  1855,  providing  a  fund  for  the  indigent  sick,  has 
no  application  to  a  fund  which  comes  to  a  county  by  operation 
of  this  section.     (Power  v.  May,  123  Cal.  147,  55  Pac.  796.) 

The  act  establishing  the  state  agricultural  society  made  it  a 
state  institution,  and  appropriation  for  it  is  not  obnoxious  to 
this  provision.     (Melvin  v.  State,  121  Cal.  16,  53  Pac.  416.) 

The  act  of  1891,  fixing  a  bounty  on  coyote  scalps,  did  not 
make  a  specific  appropriation  out  of  the  general  fund  for  the 
payment  of  such  bounties.  (Ingram  v.  Colgan,  106  Cal.  113, 
46  Am.  St.  Rep.  221,  38  Pac.  315,  39  Pac.  437,  28  L.  R.  A.  187.) 

An  act  requiring  the  tax  collector  to  pay  a  part  of  the  fees 
allowed  him  by  law  into  the  county  treasury  does  not  violate 
this  section — first,  because  the  money  had  never  been  in  the 
state  treasury,  and,  second,  because  such  act  amounts  to  an 
appropriation.     (Ream  v.  Siskiyou  Co.,  36  Cal.  620.) 

The  legislature  has  no  power  to  appropriate  money  to  agri- 
cultural societies  not  under  the  exclusive  control  of  the  state. 
(I'cople  V.  San  Joaquin  Valley  Agr.  Assn.,  151  Cal.  797,  91  Pac. 
740.) 

Tlie  constitution  does  not  expressly  prohibit  the  legislature 
from  converting  a  private  corporation  into  a  state  institution 
and  placing  it  under  state  control,  provided  the  purposes  sought 
are  within   the   general   legislative  power,   or  under  some  duty 


Art.  IV,  §  23        CONSTITUTION  OF  1879.  140 

or  function  of  government.    -(Board  v.  Nye,   8   Cal.   App.   527, 
97  Pac.  20S.) 

An  act  appropriating  one  hundred  thousand  dollars  for  the 
support  and  maintenance  of  a  mining  bureau  is  not  unconstitu- 
tional because  it  fails  to  state  specifically  on  what  fund  the 
warrant  is  to  be  drawn,  or  that  the  money  is  appropriated  out 
of  any  moneys  in  the  treasury  not  otherwise  appropriated. 
(Proll  V.  Dunn,  80  Cal.  220,  22  Pac.  143.) 

Compensation  not  to  be  increased  during  term. 

Sec.  23.  The  members  of  the  legislature  shall  receive 
for  their  services,  the  sum  of  one  thousand  dollars  each 
for  each  regular  session,  to  be  paid  at  such  times  during 
the  session  as  may  be  provided  by  law,  and  the  sum  of 
ten  dollars  each,  for  each  day  while  in  attendance  at  a 
special  or  extraordinary  session,  for  a  number  of  days  not 
exceeding  thirty;  and  mileage  to  be  fixed  by  law,  all  paid 
out  of  the  state  treasury;  such  mileage  shall  not  exceed 
ten  cents  per  mile;  and  each  member  shall  be  allowed 
contingent  expenses  not  exceeding  twenty-five  dollars  per 
member  for  each  regular  biennial  session.  The  legis- 
lature may  also  provide  for  additional  help ;  but  in  no  case 
shall  the  total  expense  for  officers,  employees  and  at- 
taches exceed  the  sum  of  five  hundred  dollars  per  day 
for  either  house,  at  any  regular  or  biennial  session,  nor 
the  sum  of  two  hundred  dollars  per  day  for  either  house, 
at  any  special  or  extraordinary  session,  nor  shall  the  pay 
of  any  officer,  employee  or  attache  be  increased  after  he 
is  elected  or  appointed,  (Amendment  adopted  Novem- 
ber 3,  1908.) 


141  CONSTITUTION  OF  1879.     Art.  IV,  §§  23a,  2-4 

[ORIGINAL  SECTION.] 
Sec.  23.  The  members  of  the  legislature  shall  receive  for 
their  services  a  per  diem  and  mileage,  to  be  fixed  by  law,  and 
paid  out  of  the  public  treasury;  such  per  diem  shall  not  exceed 
eight  dollars,  and  such  mileage  shall  not  exceed  ten  cents  per 
mile,  and  for  contingent  expenses  not  exceeding  twenty-five 
dollars  for  each  session.  No  increase  in  compensation  or  mile- 
age shall  take  effect  during  the  term -for  which  the  members 
of  either  house  shall  have  been  elected,  and  the  pay  of  no  at- 
tache shall  be  increased  after  he  is  elected  or  appointed. 

Officers,  employees  and  attaches. 

Sec.  23a.  The  legislature  may  also  provide  for  the 
employment  of  help;  but  in  no  case  shall  the  total  ex- 
pense for  officers,  employees  and  attaches  exceed  the  sum 
of  five  hundred  dollars  per  day  for  either  house,  at  any 
regular  or  biennial  session  nor  the  sum  of  two  hundred 
dollars  per  day  for  either  house  at  any  special  or  extra- 
ordinary session,  nor  shall  the  pay  of  any  officer,  em- 
ployee or  attache  be  increased  after  he  is  elected  or  ap- 
pointed.    (Amendment  adopted  November  3,  1908.) 

Title  of  laws — Revision  and  amendment — Publication 
of. 

Sec.  24.  Every  act  shall  embrace  but  one  subject, 
which  subject  shall  be  expressed  in  its  title.  But  if  any 
subject  shall  be  embraced  in  an  act  which  shall  not  be 
expressed  in  its  title,  such  act  shall  be  void  only  as  to  so 
much  thereof  as  shall  not  be  expressed  in  its  title.  No 
law  shall  be  revisetl  or  amended  by  reference  to  its  title; 


Art.  IV,  §  24        CONSTITUTION  OP  1879.  142 

but  in  such  case  the  act  revised  or  section  amended  shall 
be  re-enacted  and  published  at  length  as  revised  or 
amended;  and  all  laws  of  the  state  of  California,  and 
all  official  writings,  and  the  executive,  legislative,  and 
judicial  proceedings  shall  be  conducted,  preserved,  and 
published  in  no  other  than  the  English  language. 

TITLE  AND  FORM  OF  ACTS — Construction. — A  like  provi- 
sion of  the  former  constitution  was  held  to  be  merely  directory. 
(Washington  v.  Page,  4  Cal.  388;  Pierpont  v.  Crouch,  10  Cal. 
315;  San  Francisco  v.  Spring  Valley  W.  W.,  54  Cal.  571.) 

But  the  provisions  of  this  section  are  held  to  be  mandatory. 
(Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251.) 

It  was  by  reason  of  the  provision  of  section  22  of  article  1 
that  this  section  was  declared  mandatory.  (Law  v.  San  Fran- 
cisco, 144  Cal.  384,  77  Pac.  1014.) 

A  like  provision  of  the  San  Francisco  charter  is  held  to  be 
directory  only.  (Law  v.  San  Francisco,  144  Cal.  384,  77  Pac. 
1014.) 

The  title  of  an  act  cannot  be  used  to  restrain  or  control  any 
positive  provision  of  the  act,  but  where  the  meaning  of  the 
body  of  the  act  is  doubtful,  the  title  may  be  resorted  to  as  a 
means  of  ascertaining  the  intention  of  the  legislature.  (People 
v.  Abbott,  16  Cal.  358;  Barnes  v.  Jones,  51  Cal.  303;  Matter  of 
Boston  Min.  etc.  Co.,  51  Cal.  624;  Harris  v.  Supervisors,  52  Cal. 
553.) 

The  provisions  of  this  section  should  be  liberally  construed, 
and  the  matter  must  be  left  largely  to  legislative  discretion. 
(Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251;  Abeel  v.  Clark,  84 
Cal.  226,  24  Pac.  383.) 

This  section  does  not  apply  to  municipal  ordinances.  (Ex 
parte  Haskell,  112  Cal.  412,  44  Pac.  725,  32  L.  R.  A.  527.) 

As  to  whether  this  section  applies  to  the  amendment  of  stat- 
utes enacted  before  the  present  constitution,  see  People  v.  Par- 
vin,  74  Cal.  549,  16  Pac.  490. 

One  subject. — Numerous  provisions  having  one  general  object 
fairly  indicated  by  the  title  may  be  united.  (Ex  parte  Liddell, 
93  Cal.  633,  29  Pac.  251;  People  v.  Parks,  58  Cal.  624;  Ex  parte 


143  CONSTITUTION  OP  1879.        Art.  IV,  §  24 

Kohler,  74  Cal.  38,  15  Pac.  436;  De  Witt  v.  San  Francisco,  2 
Cal.  289;  Murphy  v.  Bondshu,  2  Cal.  App.  249,  83  Pac.  278.) 

The  act  of  1891,  adding  a  new  part  to  the  Vrooman  Act  in 
relation  to  street  improvement  bonds,  does  not  contain  more 
than  one  subject.  (Hellman  v.  Shoulters,  114  Cal.  136,  44  Pac. 
91.5,  45  Pac.  1057.) 

An  act  entitled  "An  act  to  establish  a  uniform  system  of 
county  and  township  governments,"  classifying  the  counties  by 
population  and  fixing  the  compensation  of  the  county  officers, 
only  contains  one  subject.  (Longan  v.  Solano,  65  Cal.  122,  3 
Pac.  463.) 

A  resolution  approving  thirteen  separate  amendments  to  a 
city  charter  is  not  in  violation  of  this  section.  (In  re  Pfahler, 
150  Cal.  71,  88  Pac.  270,  11  Ann.  Cas.  911.) 

The  "Torrens  Land  Law"  only  embraces  one  subject.  (Rob- 
inson V.  Kerrigan,  151  Cal.  40,  121  Am.  St.  Rep.  90,  90  Pac.  129, 
12  Ann.  Cas.  829.) 

The  act  of  March  23,  1901  (Stats.  1901,  p.  647),  adding  cer- 
tain sections  to  the  Political  Code,  re-enacting  others,  amending 
others,  and  repealing  others,  all  relating  to  revenue  and  taxa- 
tion, does  not  violate  this  provision.  (Murphy  v.  Bondshu,  3 
Cal.  App.  249,  83  Pac.  278.) 

The  Primary  Election  Law  of  1909  is  not  unconstitutional 
for  embracing  in  its  title  the  subject  of  an  advisory  vote  for 
United  States  senators,  as  the  matter  of  such  a  vote  is  germane 
to  the  subject  of  a  primary  election.  (Socialist  Party  v.  Uhl, 
155  Cal.  776,  103  Pac.  181.) 

The  act  of  March  19,  1878  (Stats.  1877-78,  339),  does  not  con- 
tain more  than  one  subject.  (San  Francisco  v.  Spring  Valley 
W.  W.,  54  Cal.  571.) 

If  the  act  is  made  of  incongruous  parts,  or  to  comprehend 
unconnected  and  dissimilar  subjects  to  that  expressed  in  the 
title,  it  cannot  be  upheld.     (People  v.  Parks,  58  Cal.  624.) 

The  preservation  of  fish  and  game  is  a  single  subject  of  leg- 
islation.    (Ah  King  v.  Police  Court,  139  Cal.  718,  73  Pac.  587.) 

Title. — The  purpose  of  this  provision  is  to  protect  the  mem- 
bers of  the  legislature  as  well  as  the  public  against  fraud  from 
deceitful  and  misleading  titles.  (Fx  parte  Liddell,  93  Cal.  633, 
29  Pac.  251;  Abeel  v.  Clark,  84  Cal.  226,  24  Pac.  383.) 


Art.  IV,  §  24        CONSTITUTION  OP  1879.  144 

If  the  title  is  of  such  a  character  as  to  mislead  the  public 
or  the  members  of  the  legislature,  as  to  the  subjects  embraced 
in  it,  it  is  void.      (Wood  v.  Election   Commrs.,  58  Cal.  561.) 

The  words  in  a  title  "and  for  other  purposes"  do  not  validate 
provisions  which  are  not  germane  to  the  particular  subjects  ex- 
pressed in  the  title.  (Spier  v.  Baker,  120  Cal.  370,  52  Pac.  659, 
41  L.  R.  A.  196.) 

It  is  not  necessary  that  the  title  of  an  act  should  embrace 
an  abstract  or  catalogue  of  its  contents.  (Abeel  v.  Clark,  84 
Cal.  226,  24  Pac.  383;  Ex  parte  Liddell,  93  Cal.  633,  29  Pac.  251; 
People  v.  Superior  Court,  100  Cal.  105,  34  Pac.  492;  People  v. 
Linda  Vista  Irr,  Dist.,  128  Cal.  477,  61  Pac.  86;  Hellman  v. 
Shoulters,  114  Cal.  136,  44  Pac.  915,  45  Pac.  1057;  Ex  parte  Hal- 
lawell,  155  Cal.  112,  99  Pac.  490.) 

The  title  of  an  act  is  not  misleading  because  it  purports  to 
provide  for  a  "general"  vaccination,  when  in  fact  it  only  ap- 
plies to  children  in  the  public  schools.  (Abeel  v.  Clark,  84  Cal. 
226,  24  Pac.  383;  French  v.  Davidson,  143  Cal.  658.) 

Particular  acts  held  valid. — The  titles  of  the  following  acts 
have  been  held  sufficient:  An  act  entitled  "An  act  to  amend 
section  3581  of  the  Political  Code"  (People  v.  Parvin,  74  Cal. 
549,  16  Pac.  490.  But  see  Lewis  v.  Dunne,  134  Cal.  291,  86  Am. 
St.  Eep.  257,  66  Pac.  478,  55  L.  E.  A.  833);  a  title  expressing 

the  object  of  the  act  to  be  "to  amend  section "  of  a  named 

code  "relating"  to  the  particular  object  treated  of  in  the  body 
of  the  act  (San  Francisco  etc.  E.  E.  Co.  v.  State  Board,  60  Cal. 
12) ;  an  act  entitled  "An  act  to  prohibit  the  sophistication  and 
adulteration  of  wine,  and  to  prevent  fraud  in  the  manufacture 
and  sale  thereof,"  and  defining  pure  wine,  prohibiting  the  use 
of  deleterious  substitutes,  and  forbidding  the  sale  of  impure 
wine  (Ex  parte  Kohler,  74  Cal.  38,  15  Pac.  436);  an  act  entitled 
"An  act  to  amend  an  act  entitled  'An  act  to  establish  a  Penal 
Code,'  approved  February  14,  1872,  by  amending  section  634, 
relating  to  fish  and  game"  (People  v.  Dobbins,  73  Cal.  257,  14 
Pac.  860);  an  act  entitled  "An  act  to  provide  for  laying  out, 
etc.,  any  street,  etc.,  and  to  condemn  and  acquire  any  and  all 
lands  and  property  necessary  or  convenient  for  that  purpose," 
and  providing  for  the  assessment  of  other  lands  to  pay  for 
lands  condemned  (Davies  v.  Los  Angeles,  86  Cal.  37,  24  Pac. 
771);  an  act  entitled  "An  act  for  the  better  protection  of  stock- 
holders in  corporations  formed  under  the  laws  of  the  state  of 


14:5  CONSTITUTION  OP  1879.        Art.  IV,  §  24 

California  for  the  purpose  of  carrying  on  and  conducting  the 
business  of  mining,"  and  providing  a  penalty  for  failure  to 
make  or  post  an  itemized  account  or  balance-sheet  (Francais 
V.  Somps,  92  Cal.  503,  28  Pac.  592);  an  act  entitled  "An  act 
to  establish  a  state  refonn  school  for  juvenile  offenders,  and 
to  make  an  appropriation  therefor,"  and  providing  for  the  com- 
mitment of  juvenile  offenders  to  such  schools  (Ex  parte  Liddell, 
93  Cal.  633,  29  Pac.  251);  an  act  entitled  "An  act  to  provide 
for  laying  out,  etc.,  any  street,  etc.,  in  municipalities,  and  to 
condemn  and  acquire  any  and  all  land  and  property  necessary 
and  convenient  for  that  purpose,"  and  validating  former  pro- 
ceedings for  the  widening  of  streets  (San  Francisco  v.  Kiernan, 
98  Cal.  614,  33  Pac.  720) ;  an  act  entitled  "An  act  creating  a 
board  of  bank  commissioners,  and  prescribing  their  duties  and 
powers,"  and  providing  for  winding  up  of  banking  corporations 
(People  V.  Superior  Court,  100  Cal.  105,  34  Pac.  492);  an  act 
entitled  "An  act  to  create  the  county  of  Kings,  to  define  the 
boundaries  thereof,  and  to  provide  for  its  organization  and 
election  of  officers,  and  to  classify  said  county,"  and  providing 
for  the  collection  of  taxes  levied  before  the  formation  of  the 
county  but  collected  afterward  (Kings  County  v.  Johnson,  104 
Cal.  198,  37  Pac.  870);  an  act  entitled  "An  act  to  create  the 
office  of  commissioner  of  transportation,  and  to  define  its  powers 
and  duties;  to  fix  the  maximum  charges  for  transporting  pas- 
sengers and  freights  on  certain  railroads,  and  to  prevent  extor- 
tion and  unjust  discrimination  thereon,"  and  providing  for  the 
collection  of  fines  against  a  person  evading  the  payment  of  his 
fare  (Gieseke  v.  San  Joaquin,  109  Cal.  489,  42  Pac.  446);  an 
act  entitled  "An  act  to  establish  a  uniform  system  of  county 
and  township  governments,"  and  classifying  the  counties  by 
population,  and  fixing  the  compensation  of  the  county  officers 
(Longan  v.  Solano,  65  Cal.  122,  3  Pac.  463);  an  act  entitled 
"An  act  to  regulate  fees  in  office,"  and  providing  that  the  offi- 
cer shall  pay  jjart  of  his  fees  into  the  treasury  (Ream  v.  Siski- 
you Co.,  36  Cal.  621);  an  act  entitled  "An  act  to  enable  certain 
parties  therein  named  to  alienate  and  encumber  homesteads," 
and  providing  for  the  alienation  of  the  homestead  by  the  sane 
spouse,  under  order  of  the  probate  court  (Jones  v.  Falvclla,  126 
Cal.  24,  58  Pac.  311);  an  act  entitled  "An  act  to  protect  and 
promote  the  horticultural  interests  of  the  state,"  and  making 
Constitution — 10 


Art.  IV,  §  24        CONSTITUTION  OP  1879.  146 

the  expense  of  abating  an  insect  pest  nuisance  from  any  prop- 
erty a  lien  thereon  (Los  Angeles  v.  Spencer,  126  Cal.  670,  77 
Am.  St.  Rep.  217,  59  Pac.  202);  a  provision  relating  to  city 
justices  of  the  peace  in  an  act  entitled  "An  act  to  establish  a 
uniform  system  of  county  and  township  government"  (People 
V.  Cobb,  133  Cal.  74,  65  Pac.  325);  an  act  purporting  in  its  title 
to  add  thirty-four  enumerated  sections  to  the  Political  Code, 
"all  relating  to  the  establishment  of  a  board  of  state  harbor 
commissioners  for  the  bay  of  San  Diego,"  and  authorizing  the 
commissioners  to  institute  an  action  for  the  possession  of  any 
portion  of  the  entire  bay  of  San  Diego,  of  which  they  are  given 
the  possession  and  control  (People  v.  MuUender,  132  Cal.  217, 
64  Pac.  299);  the  statutes  of  December  25,  1877,  and  March  30, 
1878,  in  relation  to  highways  in  Los  Angeles  county  (Southern 
Pac.  Co.  V.  Pomona,  144  Cal.  339,  77  Pac.  929);  an  act  entitled 
"An  act  in  relation  to  foreign  corporations,"  and  providing  for 
the  designation  of  agents,  services  of  process  and  proof  of  cor- 
porate existence  (Anglo-Californian  Bank  v.  Field,  146  Cal.  644, 
80  Pac.  1080);  an  act  entitled  "An  act  to  provide  for  the  estab- 
lishment and  quieting  of  title  to  real  property  in  case  of  loss 
or  destruction  of  public  records"  (Title  etc.  Restoration  Co.  v. 
Kerrigan,  150  Cal.  289,  119  Am.  St.  Rep.  199,  88  Pac.  356); 
the  act  of  March  29,  1905,  providing  for  a  license  tax  on  cor- 
porations (Kaiser  Land  &  Fruit  Co.  v.  Curry,  155  Cal.  638,  103 
Pac.  341);  an  act  to  create  a  drainage  district  to  be  called 
"Sacramento  Drainage  District,"  etc.  (People  v.  Sacramento 
Drainage  District,  155  Cal.  373,  103  Pac.  207);  "An  act  regu- 
lating the  sale  of  poison  in  the  state  of  California,  and  provid- 
ing a  penalty  for  the  violation  thereof"  (Ex  parte  Hallawell, 
155  Cal.  112,  99  Pac.  490);  "An  act  creating  a  board  of  bank 
commissioners  and  prescribing  their  duties  and  powers"  (People 
v.  Bank  of  San  Luis  Obispo,  154  Cal.  194,  97  Pac.  306);  an  act 
to  add  three  new  sections  to  the  Code  of  Civil  Procedure,  to  be 
known  as  sections  numbers  941a,  941b  and  941c  of  said  code, 
respectively,  providing  a  new  and  alternative  method  by  which 
appeals  may  be  taken  from  judgments,  orders  or  decrees  of  the 
superior  court  of  the  state  of  California  to  the  supreme  court 
or  district  courts  of  appeal  thereof"  (Estate  of  McPhee,  154 
Cal.  385,  97  Pac.  878);  "An  act  to  insure  the  better  education 
of  practitioners  of  dental  surgery,  and  to  regulate  the  practice 
of  dentistry  in  the  state  of  California,  providing  penalties  for 


147  CONSTITUTION  OF  1879.        Art.  IV,  §  2-4 

the  violation  hereof,  and  to  repeal  an  act  now  in  force  relating 
to  the  same  and  known  as  "An  act,  ....  etc.,  approved  March 
12,  1885"   (Ex  parte  Hornef,  154  Cal.  355,  97  Pac.  891). 

See,  also.  People  v.  King,  127  Cal.  570,  60  Pac.  35;  Leake  v. 
Colgan,  125  Cal.  413,  58  Pac.  69;  Jennings  v.  Le  Eoy,  63  Cal. 
397;  People  v.  Henshaw,  76  Cal.  436,  18  Pac.  413;  Pennie  v. 
Keis,  80  Cal.  266,  22  Pac.  176;  People  v.  Linda  Vista  Irr.  Dist., 
128  Cal.  477,  61  Pac.  86;  Carpenter  v.  Furrey,  128  Cal.  665,  61 
Pac.  369;  Vernon  etc.  Dist.  v.  Board  of  Education,  125  Cal.  593, 
58  Pac.  175;  Ex  parte  Pfirrman,  134  Cal.  143,  66  Pac.  205;  Jack- 
son v.  Baehr,  138  Cal.  266,  71  Pac.  167;  In  re  Martin,  157  Cal. 
51,  106  Pac.  235, 

Particular  acts  held  invalid. — The  following  acts  have  been 
held  to  violate  this  provision:  An  act  whose  title  simply  pur- 
ports to  repeal  the  statute  concerning  the  publication  of  con- 
stitutional amendments,  but  in  the  body  of  the  act  also  pro- 
vides a  new  method  of  publishing  such  amendments  (People  v. 
Curry,  130  Cal.  82,  62  Pac.  516);  an  act  amending  the  act  for 
the  formation  of  sanitary  districts,  and  providing  that  sanitary 
boards  may  determine  the  qualification  of  persons  authorized 
to  sell  liquors  at  retail,  this  subject  not  being  germane  to  the 
title  of  the  original  act  (In  re  Werner,  129  Cal.  567,  62  Pac. 
97);  an  act  entitled  "An  act  to  establish  fees,"  etc.,  and  provid- 
ing for  the  payment  of  one  dollar  for  each  one  thousand  dollars 
in  excess  of  three  thousand  dollars  of  the  appraised  value  of 
the  estate  upon  filing  the  inventory,  such  payment  being  a  tax 
and  not  a  fee  (Fatjo  v.  Pfister,  117  Cal.  83,  48  Pac.  1012);  an 
act  entitled  "An  act  to  amend  sections  four  thousand  and 
four,"  and  other  sections  "to  establish  a  system  of  county  gov- 
ernments, approved  April  27,  1880,"  but  referring  to  no  par- 
ticular code  or  statute  (Leonard  v.  January,  56  Cal.  1);  an  act 
entitled  "An  act  to  promote  drainage,"  and  providing  for  the 
control  of  debris  from  mining  and  other  operations,  the  im- 
provement and  rectification  of  river  channels,  and  the  erection 
of  embankments  or  dykes  necessary  for  the  protection  of  lands, 
towns  or  cities  from  inundation  (People  v.  Parks,  58  Cal.  624; 
Doane  v.  Weil,  58  Cal.  334);  an  act  the  title  of  which  provides 
only  for  the  refunding  of  the  indebtedness  of  cities,  and  the 
issuance  of  bonds  therefor,  and  repealing  an  act  for  the  incur- 
ring of  indebtedness  by  municipal  corporations  (Los  Angeles 
V.  Ilance,  122  Cal.  77,  54  Pac.  387);  an  act  entitled  "An  act  to 


Art.  IV,  §  24        CONSTITUTION  OF  1879.  148 

establish  a  uniform  system  of  county  and  township  govern- 
ments" and  providing  for  the  salaries  of  official  reporters  of 
the  superior  courts  (Pratt  v.  Browne,  135  Cal.  649,  67  Pac. 
1082) ;  an  act  entitled  "An  act  creating  a  board  of  commis- 
sioners of  building  and  loan  associations,  and  prescribing  their 
duties  and  powers,"  aud  providing  for  withdrawals  (Provident 
etc.  Assn.  v.  Davis,  143  Cal.  253,  76  Pac.  1034) ;  an  act  pur- 
porting in  its  title  to  deal  with  publications  by  certain  public 
officers  and  in  the  body  of  the  act  providing  for  other  classes 
of  publications  (Estate  of  Melone,  141  Cal.  331,  74  Pac.  991); 
an  act  entitled  "An  act  to  establish  a  tax  on  collateral  inherit- 
ances, bequests,  and  devises"  and  imposing  such  a  tax  on 
direct  kindred  (Estate  of  Winchester,  140  Cal.  468,  74  Pac.  10). 

Amendments  of  codes. — An  act  entitled  an  act  to  amend  a 
particular  section  of  one  of  the  codes  sufficiently  states  the 
subject  of  the  act.     (People  v.  Gates,  142  Cal.  12,  75  Pac.  337.) 

The  fact  that  an  act  does  not  deal  with  the  matter  of  crimes 
and  punishments  does  not  prevent  it  from  being  in  the  form  of 
an  amendment  to  the  Penal  Code,  if  its  title  shows  its  subject 
matter.  (County -of  Butte  v.  Merrill,  141  Cal.  396,  74  Pac. 
1036.) 

An  act  entitled  an  act  to  add  a  new  section  to  a  named  code 
relating  to  a  named  subject  is  sufficient  to  embrace  all  matters 
relating  to  such  subject.  (Deyoe  v.  Superior  Court,  140  Cal. 
476,  98  Am.  St.  Eep.  73,  74  Pac.  28.) 

The  fact  that  an  act  adds  certain  sections  which  relate  to 
procedure  to  the  Civil  Code,  instead  of  the  Code  of  Civil  Pro- 
cedure, does  not  make  it  invalid.  (Deyoe  v.  Superior  Court, 
140  Cal.  476,  98  Am.  St.  Eep.  73,  74  Pac.  28.) 

An  act  entitled  "An  act  to  revise  the  Code  of  Civil  Procedure 
of  the  state  of  California  by  amending  certain  sections,  repeal- 
ing others,  and  adding  certain  new  sections,"  was  held  not  to 
sufficiently  state  its  subject  in  its  title,  for  the  reason  that  the 
"Code  of  Civil  Procedure"  does  not  state  or  express  any  sub- 
ject. (Lewis  V.  Dunne,  134  Cal.  291,  86  Am.  St.  Eep.  257,  66 
Pac.  478,  55  L.  E.  A.  833.) 

That  such  terms  as  the  "Code  of  Civil  Procedure,"  "Criminal 
Code,"  "Probate  Code,"  "Political  Code,"  etc.,  do  sufficiently 
state  a  subject,  see  Central  etc.  E.  Co.  v.  State,  104  Ga.  831,  31 
S.  E.  531,  42  L.  E.  A.  518;  Porter  v.  Thompson,  22  Iowa,  391; 
State  V.  Brassfield,  81  Mo.  151,  51  Am.  Eep.  235;  Woodruff  v. 


149  CONSTITUTION  OF  1879.       Art.  IV,  §  24 

Baldwin,  23  Kan.  491;  Heller  v.  People,  2  Colo.  App.  459,  31 
Pac.  773;  Johnson  v.  Harrison,  47  Minn.  575,  28  Am.  St.  Rep. 
382,  50  N.  W.  923;  Marston  v.  Humes,  3  Wash.  267,  28  Pac.  520; 
Mathis  V.  State,  31  Fla.  291,  12  South.  681;  Ex  parte  Thomas, 
113  Ala.  1,  21  South.  369;  Tribune  etc.  Co.  v.  Barnes,  7  K  D. 
591,  75  N.  W.  904;  Murphey  v.  Menard,  11  Tex.  673. 

Publishing  at  length. — A  revised  act  must  be  construed  as  a 
new  and  original  piece  of  legislation.  (Donlon  v.  Jewett,  88 
Cal.  530,  26  Pac.  370;  In  re  Bunkers,  1  Cal.  App,  61,  81  Pac. 
748.) 

This  provision  applies  only  to  acts  which  are  in  terms  re- 
visory or  amendatory  of  some  former  act;  and  it  does  not  apply 
to  an  independent  act,  although  it  is  inconsistent  with  some 
existing  statute.  (Pennie  v.  Reis,  80  Cal.  266,  22  Pac.  176; 
Jennings  v.  Le  Roy,  63  Cal.  397;  Baum  v.  Raphael,  57  Cal.  361; 
In  re  Bunkers,  1  Cal.  App.  61,  81  Pac.  748.) 

An  act  adding  a  new  section  to  the  Political  Code,  and  by 
implication  amending  another  section  of  the  same  code,  was 
held  to  violate  this  provision,  if  considered  as  an  amendment, 
since  it  did  not  republish  the  section  of  the  code  affected  by 
it.  (Earle  v.  Board  of  Education,  55  Cal.  489.  But  see  Hell- 
man  v.  Shoulters,  114  Cal.  136,  44  Pac.  915,  45  Pac.  1057;  Uni- 
versity of  California  v.  Bernard,  57  Cal.  612.) 

In  amending  a  section  the  entire  section  must  be  re-enacted. 
(City  of  Los  Angeles  v.  Lelande,  11  Cal.  App.  302,  104  Pac. 
717.) 

This  section  does  not  apply  to  amendments  by  implication, 
nor  to  an  act  which  merely  adds  new  sections  relating  to  a 
named  subject,  which  leaves  in  full  operation  all  the  language 
of  the  statute  which  it  purports  to  amend,  and  does  not  pur- 
port to  amend  any  section  of  that  act,  but  affects  its  operation 
only  by  implication  from  the  sections  added.  (Hellman  v. 
Shoulters,  114  Cal.  136,  44  Pac.  915,  45  Pac.  1057.  But  see 
Earle  v.  Board  of  Education,  55  Cal.  489.) 

This  section  does  not  prevent  a  section  amended  from  taking 
its  place  by  its  appropriate  number  in  the  original  act. 
(Fletcher  v.   Prather,   102   Cal.  413,   36   Pac.  658.) 

It  is  a  sufficient  compliance  with  this  provision  to  republish 
the  section  of  the  act  amended.  (Estate  of  Campbell,  143  Cal. 
623,  77  Pac.  674.) 


Art.  IV,  §  24        CONSTITUTION  OF  1879.  150 

Where  a  section  of  the  code  is  "amended  to  read  as  follows," 
and  the  amended  section  is  published  at  length,  without  any 
saving  clause,  the  effect  of  the  amendment  is  to  repeal  the  sec- 
tion as  it  originally  stood;  and  a  section  of  the  amendatory  act 
merely  providing  that  the  amendment  shall  be  applicable  to 
certain  counties  does  not  operate  as  a  saving  clause  to  continue 
the  original  section  in  force  in  other  counties.  (Huffman  v. 
Hall,  102  Cal.  26,  36  Pac.  417.) 

Under  the  provisions  of  this  section  the  amendment  of  a 
statute  operates  as  an  absolute  repeal  of  the  statute  or  section 
amended,  even  if  the  amendment  takes  nothing  away  from  the 
old  law,  but  merely  adds  a  proviso  in  certain  cases.  (Billings 
V.  Harvey,  6  Cal.  381.) 

An  act  adding  five  new  sections  to  the  Political  Code  is  not 
within  the  mischief  which  this  section  was  intended  to  prevent. 
(University  of  California  v.  Bernard,  57  Cal.  612.) 

An  act  entitled  "An  act  to  revise  the  Code  of  Civil  Procedure 
of  the  state  of  California  by  amending  certain  sections,  repeal- 
ing others,  and  adding  certain  new  sections,"  and  amending, 
repealing,  or  adding  some  five  hundred  sections  of  that  code, 
and  which  did  not  set  out  and  republish  at  length  the  entire 
Code  of  Civil  Procedure,  was  held  to  violate  this  provision  of 
the  constitution.  (Lewis  v.  Dunne,  134  Cal.  291,  86  Am.  St. 
Eep.  257,  66  Pac.  478,  55  L.  E.  A.  833.) 

See,  however,  on  the  same  subject  the  following  cases:  Port- 
land V.  Stock,  2  Or.  70;  Dolan  v.  Barnard,  5  Or.  390;  David  v. 
Portland  etc.  Co.,  14  Or.  98,  12  Pac.  174;  Greeneastle  etc.  Co. 
V.  State,  28  Ind.  382;  Town  etc.  v.  Frieze,  33  Ind.  507;  Smails 
V.  White,  4  Neb.  353;  Arnoult  v.  New  Orleans,  11  La.  Ann.  54; 
Tuskaloosa  etc.  Co.  v.  Olmsted,  41  Ala.  9. 

The  act  of  April  9,  1880,  amending  one  hundred  and  eight 
sections  of  the  Penal  Code,  repealing  ten  sections,  and  adding 
a  new  section  thereto,  is  not  a  revision  of  the  entire  code,  re- 
quiring a  republication  thereof.  (People  v.  Oates,  142  Cal.  12, 
75  Pac.  337.) 

As  to  whether  an  act  is  an  amendment  or  a  revision  of  an- 
other act,  see  Beach  v.  Von  Detten,  139  Cal.  462,  73  Pac.  187. 


151  CONSTITUTION  OF  1879.        Art.  IV,  §  25 

Local  and  special  laws  prohibited. 

Sec.  25.  The  legislature  shall  not  pass  local  or  special 
laws  in  any  of  the  following  enumerated  cases,  that  is 
to  say: 

First — Regulating  the  jurisdiction  and  duties  of  jus- 
tices of  the  peace,  police  judges,  and  of  constables. 

Second — For  the  punishment  of  crimes  and  misde- 
meanors. 

Third — Regulating  the  practice  of  courts  of  justice. 

Fourth — Providing  for  changing  the  venue  in  civil  or 
criminal  actions. 

Fifth — Granting  divorces. 

Sixth — Changing  the  names  of  persons  or  places. 

Seventh — Authorizing  the  laying  out,  opening,  alter- 
ing, maintaining,  or  vacating  roads,  highways,  streets,, 
alleys,  town  plats,  parks,  cemeteries,  graveyards,  or  pub- 
lic grounds  not  owned  by  the  state. 

Eighth — Summoning  and  impaneling  grand  and  petit 
juries,  and  providing  for  their  compensation. 

Ninth — Regulating  county  and  township  business,  or 
the  election  of  county  and  township  officers. 

Tenth — For  the  assessment  or  collection  of  taxes. 

Eleventh — Providing  for  conducting  elections,  or 
designating  the  places  of  voting,  except  on  the  organiza- 
tion of  new  counties. 

Twelfth — AflPecting  the  estates  of  deceased  persons, 
minors,  or  other  persons  under  legal  disabilities. 


Art.  IV,  §  25       CONSTITUTION  OF  1879.  152 

Thirteenth — Extending  the  time  for  the  collection  of 
taxes. 

Fourteenth — Giving  effect  to  invalid  deeds,  wills,  or 
other  instruments. 

Fifteenth — Refunding  money  paid  into  the  state  treas- 
ury. 

Sixteenth — Releasing  or  extinguishing,  in  whole  or  in 
part,  the  indebtedness,  liability,  or  obligation  of  any 
corporation  or  person  to  this  state,  or  to  any  municipal 
corporation  therein. 

Seventeenth — Declaring  any  person  of  age  or  authoriz- 
ing any  minor  to  sell,  lease,  or  encumber  his  or  her  prop- 
erty. 

Eighteenth — Legalizing,  except  as  against  the  state, 
the  unauthorized  or  invalid  act  of  any  officer. 

Nineteenth — Granting  to  any  corporation,  association, 
or  individual  any  special  or  exclusive  right,  privilege,  or 
immunity. 

Twentieth — Exempting  property  from  taxation. 

Twenty-first — Changing  county  seats. 

Twenty-second — Restoring  to  citizenship  persons  con- 
victed of  infamous  crimes. 

Twenty-third — Regulating  the  rate  of  interest  on 
money. 

Twenty-fourth — Authorizing  the  creation,  extension, 
or  impairing  of  liens. 


153  CONSTITUTION  OF  1879,        Art.  IV,  §  25 

Twenty-fifth — Chartering  or  licensing  ferries,  bridges, 
or  roads. 

Twenty-sixth — Remitting  fines,  penalties,  or  forfeit- 
ures. 

Twenty -seventh — Providing  for  the  management  of 
common  schools. 

Twenty-eighth — Creating  offices,  or  prescribing  the 
powers  and  duties  of  officers  in  counties,  cities,  cities  and 
counties,  townships,  election  or  school  districts. 

Twenty-ninth — Affecting  the  fees  or  salary  of  any 
officer. 

Thirtieth — Changing  the  law  of  descent  or  succession. 

Thirty-first — Authorizing  the  adoption  or  legitimation 
of  children. 

Thirty-second — For  limitation  of  civil  or  criminal  ac- 
tions. 

Thirty-third — In  all  other  cases  where  a  general  law 
can  be  made  applicable. 

LOCAL  AND  SPECIAL  LAWS— In  general.— Under  the 
former  constitution  the  legislature  was  not  forbidden  to  pass 
local  or  special  laws.  (Wigmore  v.  Buell,  122  Cal.  144,  54  Pac. 
600;  People  v.  Twelfth  District  Court,  17  Cal.  547;  Ex  parte 
Burke,  59  Cal.  6,  43  Am.  Rep.  231;  Nevada  School  Dist.  v.  Shoe- 
craft,  88  Cal.  372,  2G  Pac.  211.) 

The  provisions  of  this  section  are  prospective  only,  and  do 
not  affect  statutes  passed  before  its  adoption.  (Nevada  School 
Dist.  V.  Shoecraft,  88  Cal.  372,  26  Pac.  211;  Ex  parte  Burke, 
59  Cal.  6,  43  Am.  Kep.  231;  Rollins  v.  Wright,  93  Cal.  395,  29 
Pac.  58;  Smith  v.  McDermott,  93  Cal.  421,  29  Pac.  34;  Meade 
V.  Watson,  67  Cal.  591,  8  Pac.  311;  Ex  parte  Chin  Yan,  60  Cal. 
78.) 


Art.  IV,  §  25        CONSTITUTION  OF  1879.  154 

The  legislature  cannot  make  a  special  act  general  by  a  legis- 
lative declaration  that  it  shall  be  considered  a  general  act. 
(San  Francisco  v.  Spring  Valley  W.  W.,  48  Cal.  493.) 

A  law  which  on  its  face  is  general  and  may  be  applied  to  all 
cities  cannot  be  assailed  on  the  ground  that  it  was  in  fact 
passed  to  effect  an  improvement  in  one  city  only.  (Davies  v. 
Los  Angeles,  86  Cal.  37,  24  Pac.  771.) 

A  special  law  is  one  relating  to  a  selected  class,  as  well  as 
a  particular  object.  (Smith  v.  McDermott,  93  Cal.  421,  29  Pac. 
34.) 

As  to  what  is  a  general  and  what  a  special  law,  see  Ex  parte 
Burke,  59  Cal.  6,  43  Am.  Rep.  231,  per  Morrison,  C.  J. 

A  general  law  must  be  as  broad  as  the  subject  matter  to 
which  it  relates.     (Desmond  v.  Dunn,  55  Cal.  242.) 

An  act  applying  uniformly  upon  the  whole  of  any  single 
class  of  individuals  or  objects,  when  the  classification  is 
founded  upon  some  natural,  intrinsic,  or  constitutional  distinc- 
tion, is  a  general  law.  (Abeel  v.  Clark,  84  Cal.  226,  24  Pac. 
383;  Cody  v.  Murjihey,  89  Cal.  522,  26  Pac.  1081;  Foster  v. 
Police  Commrs.,  102  Cal.  483,  41  Am.  St.  Rep.  194,  37  Pac.  763; 
Rode  V.  Siebe,  119  Cal.  518,  51  Pac.  869;  Ex  parte  Koser,  60 
Cal.  177;  Vail  v.  San  Diego,  126  Cal.  35,  58  Pac.  392;  People 
V.  Central  Pac.  R.  R.  Co.,  105  Cal.  576,  38  Pac.  905;  Murphy  v. 
Pacific  Bank,  119  Cal.  334,  51  Pac.  317;  Murphy  v.  Pacific  Bank, 
130  Cal.  542,  62  Pac.  1059;  Ruperich  v.  Baehr,  142  Cal.  190,  75 
Pac.  782;  In  re  Finley,  1  Cal.  App.  198,  81  Pac.  1041;  In  re 
Martin,  157  Cal.  51,  106  Pac.  235.) 

In  order  to  make  the  law  general,  the  classification  must  not 
be  arbitrary,  but  must  be  founded  upon  some  natural,  intrinsic, 
or  constitutional  distinction,  and  some  reason  must  appear  why 
the  act  is  not  made  to  apply  generally  to  all  classes.  (Rauer 
V.  Williams,  118  Cal.  401,  50  Pac.  691;  Darcy  v.  Mayor,  104  Cal. 
642,  38  Pac.  500.) 

Although  a  law  is  general  when  it  applies  equally  to  all  in- 
dividuals of  a  class  founded  upon  a  natural,  intrinsic,  or  con- 
stitutional distinction,  it  is  not  general  if  it  confers  particular 
privileges  or  imposes  peculiar  disabilities  or  burdensome  con- 
ditions, in  the  exercise  of  a  common  right,  upon  a  class  arbi- 
trarily selected  from  the  general  body  of  those  who  stand  in 
precisely  the  same  relation  to  the  subject  of  the  law.     (Pasa- 


155  CONSTITUTION  OP  1879.        Art.  IV,  §  25 

dena  v.  Stinison,  91  Cal.  238,  27  Pac.  604;  Bloss  v.  Lewis,  109 
Cal.  493,  41  Pac.  1081.) 

A  law  which  apjtlies  only  to  a  part  of  a  class — which  relates 
not  to  any  genus,  but  only  to  species — is  a  special  law.  (People 
V.  Central  Pac.  K.  E.  Co.,  83  Cal.  393,  23  Pac.  303.) 

There  is  no  reasonable  foundation  in  the  nature  of  things  or 
such  intrinsic  difference  between  corporations  and  natural  per- 
sons that  requires  the  application  of  a  measure  of  jurisdiction 
on  an  offense  committed  by  a  corporation  different  from  that  to 
be  invoked  when  an  individual  is  charged  with  the  same  offense. 
(People  V.  Palermo  L.  &  W.  Co.,  4  Cal.  App.  717,  89  Pac.  723.) 

As  to  when  an  entire  act  will  not  be  affected  by  the  fact  that 
one  provision  thereof  is  special,  see  Davidson  v.  Von  Detten, 
139  Cal.  467,  73  Pac.  189. 

Acts  held  to  be  general. — The  following  acts  have  been  held 
to  be  general  within  the  meaning  of  this  section:  An  act  relat- 
ing to  elections  to  elect  boards  of  freeholders,  and  to  adopt 
and  amend  charters  (Fragley  v.  Phelan,  126  Cal.  383,  58  Pac. 
923) ;  an  act  providing  for  police  courts  in  all  cities  of  a  desig- 
nated population,  and  providing  that  it  shall  go  into  effect 
upon  the  expiration  of  the  rerm  of  office  of  the  present  police 
judge  of  such  cities  (People  v.  Henshaw,  76  Cal.  436,  18  Pac. 
413;  Ex  parte  Halsted,  89  Cal.  471,  26  Pac.  961;  In  re  Mitchell, 
120  Cal.  384,  52  Pac.  799);  an  act  applying  to  all  elections  in 
towns  and  cities  (Vernon  School  Dist.  v.  Board  of  Education, 
125  Cal.  593,  58  Pac.  175);  an  act  providing  for  an  action  by 
a  reclamation  district  to  determine  the  validity  of  an  assess- 
ment (Lower  Kings  Eiver  Reclamation  Dist.  No.  531  v.  McCul- 
lah,  124  Cal.  175,  56  Pac.  887);  the  insanity  law  of  1897  (People 
v.  King,  127  Cal.  570,  60  Pac.  35);  section  1203  of  the  Code 
of  Civil  Procedure  (Carpenter  v.  Furrey,  128  Cal.  665,  61  Pac. 
369);  an  act  providing  a  special  method  for  levying  a  tax  for 
high  schools,  different  from  that  provided  for  other  school  dis- 
tricts (People  v.  Lodi  High  School  Dist.,  124  Cal.  694,  57  Pac. 
660) ;  an  act  providing  for  the  refunding  of  indebtedness  of 
municipal  corporations  other  than  cities  of  the  first  class  (Los 
Angeles  v.  Teed,  112  Cal.  319,  44  Pac.  580);  an  act  providing 
for  the  assessment  of  taxes  upon  railroads  operating  in  more 
than  one  county  (People  v.  Central  Pac.  K.  R.  Co.,  105  Cal.  576, 
38  Pac.  905);  a  law  making  it  a  felony  to  sell  intoxicating 
liquors  to  Indians   (People  v.  Bray,   105  Cal.  344,  38  Pac.   731, 


Art.  IV,  §  25        CONSTITUTION  OF  1879.  156 

27  L.  R.  A.  158);  an  act  providing  for  vaccination  of  all  chil- 
dren attending  public  schools  (Abeel  v.  Clark,  84  Cal.  226,  2-i 
Pac.  383;  French  v.  Davidson,  143  Cal.  658,  77  Pac.  663);  an 
act  relating  to  the  compensation  of  the  auditor  and  his  clerk 
in  all  counties  of  the  twentieth  class  (Farnum  v.  Warner,  104 
Cal.  677,  38  Pac.  421);  an  act  forbidding  the  erection  of  parti- 
tion walls  in  cities  and  towns  of  a  greater  height  than  ten 
feet,  without  the  consent  of  the  adjoining  owner,  except  around 
public  gardens,  etc.  (Western  etc.  Co.  v.  Knickerbocker,  103 
Cal.  Ill,  37  Pac.  192);  the  provisions  of  section  1001  of  the 
Civil  Code,  providing  for  the  acquisition  of  private  property 
through  the  exercise  of  the  right  of  eminent  domain  (Santa 
Cruz  v.  Enright,  95  Cal.  105,  30  Pac.  197);  a  county  ordinance 
providing  a  smaller  license  tax  for  the  sale  of  spirituous  liquors 
at  wayside  inns  and  rural  watering  places,  outside  of  any  city, 
than  when  sold  in  a  city  (Amador  Co.  v.  Kennedy,  70  Cal.  458, 
11  Pac.  757);  an  ordinance  making  it  unlawful  to  conduct  a 
laundry  between  10  P.  M.  and  6  A.  M.,  or  on  Sundays  (Ex  parte 
Moynier,  65  Cal.  33,  2  Pac.  728) ;  the  provision  of  the  Code  of 
Civil  Procedure  giving  certain  laborers  preferred  claims  as 
against  other  attaching  creditors  (Mohle  v.  Tschirch,  63  Cal. 
381);  a  law  requiring  insane  persons  in  state  institutions  to  be 
supported  out  of  their  estates  (Estate  of  Yturburru,  134  Cal. 
567,  66  Pac.  729);  an  act  relating  to  license  taxes  in  cities  of 
a  particular  class  (Ex  parte  Jackson,  143  Cal.  564,  77  Pac.  457); 
the  collateral  inheritance  tax  act  taxing  brothers  and  sisters, 
and  exempting  the  wife  of  a  son,  the  widow  of  a  son,  and  the 
husband  of  a  daughter,  the  classification  being  based  on  a 
natural  distinction  (Estate  of  Campbell,  143  Cal.  623,  77  Pac. 
674);  an  act  providing  that  in  divorce  suits  the  final  decree 
shall  not  be  entered  until  the  expiration  of  one  year  from  the 
filing  of  the  decision  (Deyoe  v.  Superior  Court,  140  Cal.  476, 
98  Am.  St.  Eep.  73,  74  Pac.  28);  the  act  providing  for  the  ap- 
plication of  the  salaries  of  public  officers  to  the  payment  of 
their  debts  (Kuperich  v.  Baehr,  142  Cal.  190,  75  Pac.  782); 
section  1143  of  the  Penal  Code  relating  to  fees  of  jurors  in 
criminal  actions  (Jackson  v.  Baehr,  138  Cal.  266,  71  Pac.  167); 
the  provision  of  section  1373  of  the  Political  Code,  making  the 
county  in  which  the  indictment  was  found  chargeable  with  the 
support  of  insane  criminals  (Napa  State  Hospital  v  Yuba 
County,  138  Cal.  378,  71  Pac.   450);   the  provisions  of  the  Po 


157  CONSTITUTION  OF  1879.        Art.  IV,  §  25 

litical  Code  in  regard  to  road  taxes,  although  cities  and  towns 
are  exempted  from  their  operation,  since  this  does  not  exempt 
cities  and  towns  from  the  tax,  but  compels  cities  and  towns  to 
maintain  their  streets  under  the  street  improvement  act  (Miller 
V.  County  of  Kern,  137  Cal.  516,  70  Pac.  549);  an  act  applying  to 
all  foreign  corporations  and  providing  for  filing  designation  of 
agents,  service  of  process  and  proof  of  corporate  existence 
(Anglo-Californian  Bank  v.  Field,  146  Cal.  644,  80  Pac.  1030); 
the  act  of  1901  authorizing  suits  against  the  state  upon  coyote 
bounty  claims  (Bickerdike  v.  State  of  California,  144  Cal.  681, 
78  Pac.  270);  the  act  of  April  23,  1880  (Stats.  1880,  p.  131),  for- 
bidding the  acquisition  or  sale  of  mining  ground  by  mining  cor- 
porations without  the  assent  of  two-thirds  of  its  stockholders 
(Lacy  V.  Gunn,  144  Cal.  511,  78  Pac.  30) ;  the  state  dental  law 
classifying  those  who  may  practice  dentistry,  as  it  does  not 
discriminate  between  persons  within  the  same  class  (Ex  parte 
Whitley,  144  Cal.  167,  77  Pac.  879);  section  3443  of  the  Po- 
litical Code  requiring  the  complaint  to  set  forth  certain  papers, 
such  provision  being  .iustified  by  the  nature  and  object  of  the 
act  (Boggs  V.  Gaueard,  148  Cal.  711,  84  Pac.  195);  acts  provid- 
ing two  independent  schemes,  to  either  of  which  a  municipality 
may  have  resort  as  it  shall  deem  expedient  in  the  acquisition 
of  land  for  park  purposes  (Oakland  v.  Thompson,  151  Cal. 
572,  91  Pac.  387) ;  a  law  forbidding  the  employment  of  children 
under  the  age  of  sixteen  years  in  dangerous  or  immoral  places 
(In  re  Weber,  149  Cal.  392,  86  Pac.  809);  the  provision  of  the 
child  labor  law  permitting  the  employment  of  children  whose 
parents  are  unable  to  labor  from  sickness  (In  re  Spencer,  149 
Cal.  396,  117  Am.  St.  Rep.  137,  86  Pac.  896,  9  Ann.  Cas.  1105); 
the  provision  of  the  child  labor  law  permitting  the  employment 
of  children  during  vacations  upon  the  permit  of  the  school  prin- 
cipal (In  re  Spencer,  149  Cal.  396,  117  Am.  St.  Rep.  137,  86 
Pac.  896,  9  Ann.  Cas.  1105);  an  act  forbidding  the  employment 
of  children  in  singing  or  playing  on  musical  instruments,  ex- 
cept in  churches,  schools  or  academies  (In  re  W^eber,  149  Cal. 
392,  86  Pac.  809) ;  the  act  providing  for  the  establishment  of 
titles  in  San  Francisco  when  the  records  were  destroyed  by 
fire,  though  it  makes  provisions  regulating  practice  which  are 
not  found  in  other  judicial  proceedings  (Title  etc.  Restoration 
Co.  V.  Kerrigan,  150  Cal.  289,  119  Am.  St.  Rep.  199,  88  Pac. 
356);   the  act  providing  for  the  establishment  of  titles  when 


Art.  IV,  §  25        CONSTITUTION  OF  1879.  158 

the  records  are  destroyed  by  earthquake,  fire,  or  flood  and  not 
covering  destruction  by  other  agencies  (Title  etc.  Restoration 
Co.  V.  Kerrigan,  150  Cal.  289,  119  Am.  St.  Rep.  199,  88  Pac. 
356) ;  a  curative  act  as  to  all  tax  deeds  defective  in  not  stating 
the  time  allowed  for  redemption  (Baird  v.  Monroe,  150  Cal. 
560,  89  Pac.  352) ;  the  law  requiring  electors  to  declare  their 
party  affiliation  when  registering  which  does  not  apply  to  per- 
sons who  registered  before  its  enactment  (Schostay  v.  Cator,  151 
Cal.  600,  91  Pac.  502);  an  act  granting  power  to  cities  of  a 
particular  class  to  acquire  waterworks  (Gary  v.  Blodgett,  10 
Cal.  App.  463,  102  Pac.  668) ;  an  ordinance  forbidding  the  main- 
tenance of  public  billiard  and  pool  rooms,  but  permitting  pri- 
vate billiard-rooms,  and  billiard-rooms  in  hotels  for  bona  fide 
guests  only  (Ex  parte  Murphy,  8  Cal.  App.  440,  97  Pac.  199); 
section  710  of  the  Code  of  Civil  Procedure,  providing  for  the 
garnishment  of  the  salaries  of  certain  public  officers  at  the  in- 
stance of  their  judgment  creditors  (Lawson  v.  Lawson,  158  Cal. 
446,  111  Pac.  354);  an  act  to  provide  for  laying  out,  opening 
etc.,  any  street,  etc.  (Stats.  1889,  p.  70),  (Clute  v.  Turner,  157 
Cal.  73,  106  Pac.  240),  an  act  regulating  the  hours  of  employ- 
ment in  underground  mines  and  in  smelting  and  reduction 
works  (In  re  Martin,  157  Cab  51,  106  Pac.  235). 

See,  also,  eases  cited  below  under  the  particular  subdivisions 
of  this  section. 

Acts  held  to  be  special. — On  the  other  hand,  the  following 
acts  have  been  held  to  be  special  within  the  meaning  of  this 
section:  An  act  providing  for  boards  of  election  commissioners 
in  cities  and  counties  having  one  hundred  and  fifty  thousand 
or  more  inhabitants,  that  being  an  arbitrary  classification  with- 
out reference  to  the  existing  classification  by  general  law  (Den- 
man  v.  Broderick,  111  Cal.  96,  43  Pac.  516);  the  "McClure 
Charter,"  because  it  only  applied  to  consolidated  city  and 
county  governments  of  a  designated  population  (Desmond  v. 
Dunn,  55  Cal.  242);  a  provision  of  the  County  Government  Act 
providing  for  salaries  in  addition  to  fees  of  constables  in  town- 
ships numbered  one  to  ten  in  counties  of  one  particular  class 
(Lougher  v.  Soto,  129  Cal.  610,  62  Pac.  184);  an  act  giving 
laborers  employed  by  corporations  by  the  week  or  month  a  lien 
for  wages  (Slocum  v.  Bear  Valley  Irr.  Co.,  122  Cal.  555,  68  Am. 
St.  Rep.  68,  55  Pac.  403);  a  law  depriving  certain  persons  arbi- 
trarily of  the  right  to  participate  in  an  election  (Spier  v.  Baker, 


159  CONSTITUTION  OP  1879.        Art.  IV,  §  25 

120  Cal.  370,  52  Pac.  659,  41  L.  E.  A.  196);  an  act  directed  at 
and  applicable  to  one  particular  named  municipal  corporation, 
and  taking  away  a  large  part  of  its  territory  (People  v.  Com- 
mon Council,  85  Cal.  369,  24  Pac.  727;  Fisher  v.  Police  Court, 
86  Cal.  158,  24  Pac.  1000);  an  act  to  remedy  the  failure  on  the 
part  of  the  tax  collector  to  publish  the  names  of  the  owners, 
etc.  (Moore  v.  Patch,  12  Cal.  263);  the  provision  of  section  1203 
of  the  Code  of  Civil  Procedure,  requiring  contractors  for  the 
erection  of  buildings  to  secure  their  contracts  by  bonds 
(Shaughnessy  v.  American  Surety  Co.,  138  Cal.  543,  69  Pac.  250, 
71  Pac.  701);  a  law  regulating  the  rate  of  interest  on  chattel 
mortgages  on  certain  classes  of  property  only  (Ex  parte 
Sohncke,  148  Cal.  262,  113  Am.  St.  Kep.  236,  82  Pac.  956,  2  L. 
B.  A.,  N.  S.,  813,  7  Ann.  Cas.  475);  the  provision  of  the  me- 
chanic's lien  law  allowing  the  plaintiff,  but  not  the  defendant, 
an  attorney's  fee  (Builders'  Supply  Depot  v.  O'Connor,  150  Cal. 
265,  119  Am.  St.  Kep.  193,  88  Pac.  982,  11  Ann.  Cas.  712). 

See,  also,  eases  cited  below  under  particular  subdivisions  of 
this  section. 

Subdivision  1. — An  act  establishing  an  additional  police  court 
in  San  Francisco,  with  the  same  jurisdiction,  and  to  be  gov- 
erned by  the  same  rules  as  the  court  already  existing,  is  not  a 
special   law.     (Ex  parte  Jordan,  62   Cal.  464.) 

This  subdivision  does  not  apply  to  the  terms  of  ofSce  of  jus- 
tices of  the  peace.  (Kahn  v.  Sutro,  114  Cal.  316,  46  Pac.  87, 
33  L.  R.  A.  620.) 

An  act  creating  a  justice's  court  for  one  particular  named 
town  and  fixing  its  jurisdiction  is  a  special  law.  (Minor  v. 
Justice's  Court,  121  Cal.  264,  53  Pac.  795.) 

An  act  creating  a  police  court  for  cities  of  one  class  is  con- 
stitutional. (Union  etc,  Co.  v.  Rose,  11  Cal.  App.  357,  104  Pac. 
1006.) 

Subdivision  2. — An  act  making  it  a  misdemeanor  "for  any 
person  engaged  in  the  business  of  baking  to  engage,  or  to  per- 
mit others  in  his  employ  to  engage,  in  the  business  of  baking 
for  the  purpose  of  sale,  between  the  hours  of  6  o'clock  P.  M. 
on  Saturday  and  6  o'clock  P.  M.  on  Sunday,"  is  a  special  law 
(Ex  parte  Westerfield,  55  Cal.  550,  36  Am.  Rep.  47.) 

An  act  mnking  it  unlawful  to  keep  open  any  place  of  butji- 
ness  on  Sunday,  but  exempting  hotels,  boarding-liouses,  barber- 
shops, baths,  markets,  restaurants,  taverns,  livery-stables,  and 


Art.  IV,  §  25        coNSTiTUTiox  of  1S79.  160 

retail  drug  stores,  held  not  to  be  a  special  law,  (Ex  parte 
Koser,  60  CaL  117.) 

This  section  does  not  prohibit  the  legislature  from  authoriz- 
ing by  general  laws  ordinances  which  would  be  special  laws  if 
enacted  by  the  legislature  directlT.  (Ex  parte  Chin  Yan,  60 
CaL  78.) 

An  act  allowing  certain  convicts  in  the  city  and  county  of 
San  Francisco  to  be  imprisoned  in  the  house  of  coneetion  in- 
stead of  the  county  jail  or  state  prison  does  not  violate  this 
subdivision.  (Ex  parte  Williams,  87  CaL  78.  24  Pac.  6G2,  25 
Pac  248.) 

An  act  establishing  an  additional  police  court  in  San  Fran- 
cisco, with  the  same  jurisdiction  and  to  be  governed  by  the 
same  rules  as  the  court  already  existing,  is  not  a  special  law. 
<Ex  parte  Jordan,  62  CaL  464.) 

An  act  making  it  a  misdemeanor  to  keep  open  a  barber-shop 
on  Sundavs  and  other  holidavs  is  special  legislation.  (Ex 
parte  Jentzsch,  112  Cal.  468,  44*  Pac.  803,  32  L.  B.  A.  664,) 

Subdivision  3. — A  provision  in  the  municipal  corporation  act 
that  in  cities  of  one  class  it  shall  not  be  necessary  to  plead  or 
prove  the  existence  or  validity  of  any  ordinance  thereof,  and 
that  courts  shall  take  judicial  notice  thereof,  is  special  legisla- 
tion.    (City  of  Tulare  v.  Hevren,  126  CaL  226,  58  Pac.  530.) 

A  provision  in  the  act  supplemental  to  the  "Wright  Act," 
that  in  a  proceeding  to  confirm  the  organization  and  bonds  of 
an  irrigation  district  "a  motion  for  a  new  trial  must  be  made 
npon  the  minutes  of  the  court,"  is  repugnant  to  this  provision. 
(Cullen  V.  Glendora  Water  Co.,  113  CaL  503,  39  Pac.  769,  45 
Pac.  822.) 

The  "Banking  Commissioners'  Act,"  providing  for  the  wind- 
ing up  of  banking  corporations,  and  to  that  extent  superseding 
the  provisions  of  the  general  Insolvent  Act,  is  constitutional. 
(People  V.  Superior  Court,  IfjO  CaL  105,  34  Pac.  492.) 

An  act  providing  the  form  of  a  complaint  in  an  action  to  con- 
demn land  is  valid.  (San  Francisco  v.  Kiernan,  98  Cal.  614,  33 
Pac.  720.) 

An  act  requiring  an  undertaking  on  the  part  of  the  plaintiff 
in  actions  of  libel  and  slander  is  not  a  special  law.  (Smith 
V.  McI»ermott,  93  CaL  421,  29  Pac.  34.) 

The  word  "practice"  includes  all  "pleadings,"  (People  v. 
Central  B,  B.  Co.,  83  CaL  393,  23  Pac.  303.) 


161  coxsTixmox  of  1S79.        Art.  IV,  §  25 

A  law  providing  for  a  special  form  of  complaint  in  an  action 
to  recover  an  assessment  of  taxes  against  a  railroad  situated  in 
more  than  one  countv  is  in  violation  of  this  section.  (People 
V.  Central  Pac.  B.  B.  Co.,  S3  Cal.  393.  23  Pae.  303.  But  see 
People  T.  Central  Pac.  B.  B.  Co,  105  CaL  576,  33  Pae.  905.) 

An  act  allowing  certain  convicts  in  the  city  and  county  of 
San  Francisco  to  be  imprisoned  in  the  house  of  correction  in- 
stead of  the  county  jail  or  state  prison  does  not  violate  this 
subdivision.  (Ex  parte  Williams,  S7  CaL  73,  24  Pae.  602,  25 
Pac.  24S.) 

An  act  establishing  an  additional  police  court  in  San  Fran- 
cisco, with  the  same  jurisdiction  and  to  be  governed  by  the 
same  rules  as  the  court  already  existing,  is  not  a  special  law. 
(Ex  parte  Jordan,  62  Cal.  464.) 

Subdivision  6. — ITnder  this  subdivision  the  legislature  cannot 
by  special  law  change  the  name  of  a  corporation,  but  may  by 
general  law  provide  for  such  change  by  the  superior  court  upon 
application  of  the  incorporators.  (Matter  of  La  Soeiete  Fran- 
ca :>e.  etc.,  123  Cal.  525,  56  Pae.  45S.) 

Subdivision  7, — ^The  act  of  1S91  supplemental  to  the  Trooman 
Act,  relating  to  street  work  in  all  municipalities,  is  a  general 
law.  (Heliman  v.  Shoulters,  114  CaL  136,  44  Pae.  915,  45  Pae, 
1057.) 

Subdivision  9. — A  law  providing  that,  in  counties  of  one  par- 
ticular class  only,  witnesses  in  criminal  eases  shall  be  entitled 
to  the  same  fees  as  jurors,  in  the  discretion  of  the  court,  is 
special.     (Turner  v.  Siskiyou  Co..  109  CaL  332,  42  Pae.  434.) 

A  provision  of  the  County  Government  Act,  that  in  counties 
of  a  certain  class  county  licenses  collected  in  cities  shall  be 
paid  into  the  treasuries  of  such  cities  for  street  improvements, 
is  in  violation  of  this  subdivision.  (San  Luis  Obispo  v.  Graves, 
S4  CaL  71,  23  Pae.  1032.) 

The  provisions  of  the  County  Government  Act  of  1S93  em- 
powering certain  of  the  county  officers  in  counties  of  one  class 
to  appoint  a  certain  number  of  deputies,  whose  salaries  are 
fixed  bv  the  act  and  made  payable  out  of  the  county  treasury, 
is  valid,  although  in  other  counties  the  principals  must  pay  the 
salaries  of  their  deputies.  (Tulare  Co.  v.  May.  IIS  Cal.  303,  50 
Pac  427;  Freeman  v.  Barnum,  131  CaL  3S6,  S2  Am.  St.  Bep. 
Consutnuon — 11 


Art.  IV,  §  25        CONSTITUTION  OF  1879.  1G2 

355,  63  Pac.  691.  Welsh  v.  Bramlet,  98  Cal.  219,  33  Pac.  66, 
and  Walser  v.  Austin,  104  Cal.  128,  37  Pac.  869,  overruled.) 

An  act  directing  the  municipality  to  pay  a  particular  claim 
against  it  is  in  violation  of  this  provision.  (Conlin  v.  Super- 
visors, 111  Cal.  404,  46  Pac.  279,  33  L.  E.  A.  752.) 

Subdivision  10. — A  law  providing  that  taxes  upon  personal 
property  unsecured  by  real  estate  shall  be  collected  at  the  time 
of  the  assessment,  and  before  the  time  provided  for  the  collec- 
tion of  taxes  upon  other  property,  is  valid.  (Rode  v.  Siebe,  119 
Cal.  518,  51  Pac.  869,  39  L.  R.  A.  342,  Van  Fleet,  J.,  and  Har- 
rison, J.,  dissenting;  Pacific  Postal  etc.  Co.  v.  Dalton,  119  Cal. 
604,  51  Pac.  1072.) 

Section  10  of  article  13  of  the  constitution  is  not  "a  local 
or  special  law"  passed  by  the  legislature.  (San  Francisco  etc. 
E.  E.  Co.  V.  State  Board,  60  Cal.  12.) 

A  law  providing  a  special  method  of  assessment  and  collec- 
tion of  taxes  against  railroads  situated  in  more  than  one  county 
is  special  legislation.  (People  v.  Central  Pac.  E.  E.  Co.,  83  Cal. 
393,  23  Pac.  303.  But  see  People  v.  Central  Pac.  R.  E.  Co.,  105 
Cal.  576,  38  Pac.  905.) 

Subdivision  11. — In  forming  a  new  county  the  legislature 
may  make  sjiecial  provisions  as  to  the  first  election  to  be  held 
in  it,  and  as  to  all  things  which  must  be  done  in  order  to  com- 
plete the  organization  and  preserve  the  orderly  and  harmonious 
administration  of  the  laws  therein.  (People  v.  McFadden,  81 
Cal.  489,  15  Am.  St.  Eep.  66,  22  Pac.  851.) 

A  law  creating  and  providing  for  the  organization  of  a  new 
county  is  not  within  the  prohibition  against  special  and  local 
legislation.  (People  v.  Glenn  Co.,  100  Cal.  419,  38  Am.  St. 
Eep.  305,  35  Pac.  302.) 

An  act  creating  a  new  county  may  provide  for  the  collection 
of  taxes  levied  before  the  formation  of  the  county,  but  col- 
lected afterward.  (Kings  County  v.  Johnson,  104  Cal.  198,  37 
Pac.  870.) 

The  Primary  Election  Law  of  1895,  being  expressly  confined 
in  its  operation  to  counties  of  the  first  and  second  class,  is  local 
and  special.     (Marsh  v.  Supervisors,  111  Cal.  368,  43  Pac.  975.) 

Subdivision  13. — A  law  providing  a  special  method  of  as- 
sessment and  collection  of  taxes  against  railroads  situated  in 
more  than  one  county  is  special  legislation.     (People  v.  Central 


163  CONSTITUTION  OF  1879.        Art.  IV,  §  25 

Pac.  R.  R.  Co.,  83  Cal.  393,  23  Pac.  303.  But  see  People  v.  Cen- 
tral Pae.  R.  R.  Co.,  105  Cal.  576,  38  Pac.  905.) 

Subdivision  14. — An  act  validating  bonds  of  municipalities 
when  authorized  by  two-thirds  of  the  inhabitauts  of  the  county 
is  not  a  special  law.  (Eedlands  v.  Brook,  151  Cal.  4:74,  91  Pac. 
150.) 

Subdivision  16. — An  act  attempting  retroactively  to  exempt 
resident  nephews  and  nieces  from  the  payment  of  unpaid  taxes 
upon  collateral  inheritances  is  in  violation  of  this  provision. 
(Estate  of  Stanford,  126  Cal.  112,  54  Pac.  259,  58  Pac.  462,  45 
L.  R.  A,  788.) 

Subdivision  19.— Tulare  Co.  v.  May,  118  Cal.  303,  50  Pac. 
427;  People  v.  Superior  Court,  100  Cal.  105,  34  Pac.  492. 

Subdivision  20. — A  law  providing  a  special  method  of  assess- 
ment and  collection  of  taxes  against  railroads  situated  in  more 
than  one  county  is  special  legislation.  (People  v.  Central  Pac. 
R.  R.  Co.,  83  Cal.  393,  23  Pac.  303.  But  see  People  v.  Central 
Pac.  R.  R.  Co.,  1U5  Cal.  576,  38  Pac.  905.) 

Subdivision  23. — An  act  making  it  a  misdemeanor  for  a  pawn- 
broker to  charge  or  receive  more  than  two  per  cent  per  month 
interest  is  not  a  special  law.  (Ex  parte  Lichenstein,  67  Cal. 
359,  56  Am.  Rep.  713,  7  Pac.  728.) 

Subdivision  24.— People  v.  Central  Pac.  R.  R.  Co.,  83  Cal.  393, 

23  Pae.  303;  People  v.  Central  Pac.  R.  R.  Co.,  105  Cal.  576,  38 
Pac.  905. 

Subdivision  27. — The  fixing  of  salaries  of  teachers  is  part  of 
the  "management  of  the  common  schools."  (Earle  v.  Board  of 
Education,  55  Cal.  489.) 

An  act  relating  to  salaries  of  school  teachers  in  cities  having 
one  hundred  thousand  inhabitants  or  more  is  local  and  uncon- 
stitutional.     (Earle  v.  Board  of  Education,  55  Cal.  489.) 

An  act  providing  that  in  cities  having  a  board  of  education 
the  city  treasurer  is  to  have  the  custody  of  the  state  and 
county  school  money  appropriated  to  the  city  is  a  special  law. 
(Bruch  v.  Colombet,  104  Cal.  347,  38  Pac.  45.) 

Subdivision  28. — An  act  authorizing  the  police  commissioners 
of  Sacramento  to  appoint  policemen  not  exceeding  thirty  in 
number  is  a  special  law,  and  creates  officers  within  the  meaning 
of  this  subdivision.     (FarrcU  v.  Board  of  Trustees,  85  Cal.  408, 

24  Pac.  868.) 


Art.  IV,  §  25        CONSTITUTION  OF  1879.  164 

The  word  "officers"  includes  policemen  in  cities,  and  includes 
all  officers  who  exercise  their  office  and  perform  their  duties 
within  the  limits  of  either  political  division  mentioned.  (Far- 
rell  V.  Board  of  Trustees,  85  Cal.  408,  24  Pae.  868.) 

An  act  directing  the  municipality  to  pay  a  particular  claim 
against  it  is  in  violation  of  this  subdivision.  (Conlin  v.  Super- 
visors, 114  Cal.  404,  46  Pac.  279,  33  L.  E.  A.  752.) 

An  act  creating  officers  in  but  one  class  of  counties,  arbi- 
trarily created  and  designated  by  population,  without  reference 
to  the  classification  contained  in  the  general  law,  is  in  violation 
of  this  provision.  (San  Francisco  v.  Broderick,  125  Cal.  188, 
57  Pac.  887.) 

This  subdivision  does  not  prevent  the  passage  of  a  special 
law  as  to  a  board  of  harbor  commissioners  for  the  bay  of  San 
Diego.     (People  v.  Mullender,  132  Cal.  217,  64  Pac.  299.) 

See,  also,  Ex  parte  Jordan,  62  Cal.  464;  Welsh  v.  Bramlet, 
98  Cal.  219,  33  Pac.  66;  Tulare  Co.  v.  May,  118  Cal.  303,  50  Pac. 
427. 

Subdivision  29. — An  act  making  an  appropriation  to  pay  the 
salary  of  an  officer  during  a  certain  period  before  the  amount 
of  the  salary  has  been  fixed  is  not  in  violation  of  this  section. 
(Smith  V.  Dunn,  64  Cal.  164,  28  Pac.  232.  Smith  v.  Kenfield,  57 
Cal.  138,  distinguished.) 

The  County  Government  Act  is  not  in  violation  of  this  pro- 
vision.    (Longan  v.  Solano  Co.,  65  Cal.  122,  3  Pac.  463.) 

An  act  fixing  the  salaries  of  county  officers  and  providing 
that  in  all  counties,  except  counties  of  three  designated  classes, 
it  should  not  take  effect  until  the  expiration  of  the  terms  of  the 
incumbents,  and  in  those  three  it  should  take  effect  the  first 
day  of  the  month  succeeding  its  passage,  is  a  special  law. 
(Miller  v.  Kister,  68  Cal.  142,  8  Pac.  813.) 

An  act  readjusting  the  salaries  of  all  county  officers  of  coun- 
ties of  a  particular  class  is  a  general  law.  (Cody  v.  Murphey, 
89  Cal.  522,  26  Pac.  1081.) 

An  act  making  an  appropriation  to  pay  James  W.  Rankin  for 
services  in  the  state  treasurer's  office  is  not  in  violation  of  this 
section.     (Rankin  v.  Colgan,  92  Cal.  605,  28  Pac.  673.) 

An  act  providing  that  when  the  population  of  an  existing 
county  shall  be  reduced,  by  reason  of  the  creation  of  any  new 
county  from  the  territory  thereof,  below  the  class  first  assumed 
by  it  under  the  act,  it  should  be  the  duty  of  the  sujiervisors  of 


165  CONSTITUTION  OF  1879.        Art.  IV,  §  25 

such  county  to  designate  the  class  to  which  such  county  has 
been  reduced,  is  a  general  law.  (Kumler  v.  Supervisors,  103 
Cal.  393,  37  Pac.  383.) 

A  provision  of  the  fee  bill  allowing  justices  of  the  peace  a 
certain  portion  of  the  fees  collected  by  them,  without  refer- 
ence to  the  classification  contained  in  the  County  Government 
Act,  is  a  special  law.  (Dwyer  v.  Parker,  115  Cal.  544,  47  Pac. 
372.) 

The  provision  of  the  County  Government  Act  of  1897,  pro- 
viding for  salaries  in  certain  counties  in  lieu  of  fees  and  per 
diem  is  valid.     (Vail  v.  San  Diego,  126  Cal.  35,  58  Pac.  392.) 

See,  also.  Ex  parte  Jordan,  62  Cal.  464;  Tulare  Co.  v.  May, 
118  Cal.  303,  50  Pac.  427. 

Subdivision  33. — In  Earle  v.  Board  of  Education,  55  Cal.  489, 
it  was  suggested,  but  not  decided,  that  the  court  may  determine 
whether  a  general  law  can  be  made  ap])licable  in  a  given  ca,se. 

As  to  whether  the  legislative  detennination  of  the  question 
whether  a  general  law  can  be  made  applicable  is  conclusive, 
discussed  but  not  decided.  (People  v.  Mullender,  132  Cal.  217, 
64  Pac.  299.) 

A  law  cannot  be  held  invalid  merely  because,  in  the  opinion 
of  the  court,  it  would  have  been  possible  to  have  framed  a 
general  law  under  which  the  purpose  of  the  special  law  could 
have  been  accomplished.  (People  v.  Mullender,  132  Cal.  217, 
64  Pac.  299.) 

It  is  impossible  for  the  court  to  say  that  a  general  law  could 
be  made  applicable  to  the  subject  of  formation  of  new  coun- 
ties. (People  v.  McFadden,  81  Cal.  489,  15  Am.  St.  Kep.  06, 
22  Pac.  851.) 

A  law  requiring  cities  of  two  designated  classes  to  make 
effort  to  agree  with  the  owners  of  land  sought  to  be  condemned, 
before  instituting  condemnation  proceedings,  is  special  legisla- 
tion.     (Pasadena  v.  Stimson,  91  Cal.  2:;S,  27  Pac.  604.) 

A  provision  of  the  County  Government  Act  that  in  all  coun- 
ties of  one  particular  class  certain  additional  fees  shall  be  col- 
lected for  filing  the  inventory  in  estates  of  deceased  persons, 
is  violative  of  this  section.  (Bloss  v.  Lewis,  109  Cal.  493,  41 
Pac.  1081.) 

The  act  of  1895,  providing  for  the  disincorporation  of  munici- 
pal corporations  of  the  sixth  class,  is  not  a  special  law.  (Mint- 
zer  V.  Schilling,  117  Cal.  361,  49  Pac.  209.) 


Art.  IV,  §  25        CONSTITUTION  OF  1879.  166 

The  act  of  1893,  providing  a  special  method  of  collecting  fees 
in  cities  and  counties  of  over  one  hundred  thousand  inhabit- 
ants, is  a  special  law.  (Rauer  v.  Williams,  118  Cal.  401,  50 
Pac.  691.) 

An  act  providing  a  special  mode  of  conducting  the  election 
of  directors  of  mining  corporations  is  a  special  law.  (Krause 
V.  Durbrow,  127  Cal.  681,  60  Pac.  438.) 

An  act  providing  that  no  misnomer  of  the  owner  shall  affect 
any  assessment  by  an  irrigation  district  is  a  general  law.  (Es- 
condido  High  School  Dist.  v.  Escondido  Seminary,  130  Cal.  128, 
62  Pac.  401.) 

The  act  of  1905  creating  the  "Sacramento  Drainage  District," 
while  a  special  act,  is  not  unconstitutional,  as  the  subject 
matter  necessitated  a  special  law.  Determination  of  the  legis- 
lature as  to  necessity  for  special  act  will  not  be  disturbed,  ex- 
cept upon  a  clear  showing  that  there  was  no  such  necessity. 
(People  V.  Sacramento  Drainage  District,  155  Cal.  373,  103  Pac. 
207.) 

A  law  prohibiting  waste  of  water  from  artesian  wells  is  not 
unconstitutional  because  not  made  applicable  to  surface  water 
and  pumps.      (Ex  parte  Elam,  6  Cal.  App.  233,  91  Pac.  811.) 

An  act  appropriating  money  for  the  support  of  veterans  of 
the  Civil  War  at  a  particular  home  is  not  unconstitutional  be- 
cause not  made  applicable  to  all  veterans  of  the  Civil  War. 
(Board  v.  Nye,  8  Cal.  App.  527,  97  Pac.  208.) 

The  "Torrens  Land  Law"  is  not  a  special  law,  although  it 
makes  special  provisions  as  to  land  which  is  brought  under  the 
act.  (Eobinson  v.  Kerrigan,  151  Cal.  40,  121  Am.  St.  Rep.  90, 
90  Pac.  129,  12  Ann.  Cas.  829.) 

An  act  providing  different  qualifications  for  the  electors  who 
shall  be  allowed  to  vote  at  an  election  to  be  held  in  pursuance 
of  such  act  is  not  a  special  law  forbidden  by  this  provision  of 
the  constitution.  (Wheeler  v.  Herbert,  152  Cal.  224,  92  Pac. 
353.) 

See,  also.  Marsh  v.  Supervisors,  111  Cal.  368,  43  Pac.  975; 
People  V.  Superior  Court,  100  Cal.  105,  34  Pac.  492;  Conlin  v. 
Supervisors,  114  Cal.  404,  46  Pac.  279,  33  L.  R.  A.  752;  Tulare 
Co.  V.  May,  118  Cal.  303,  50  Pac.  427;  Ex  parte  Jentzsch,  112 
Cal.  468,  44  Pac.  803,  32  L.  R.  A.  664. 


167  CONSTITUTION  OP  1879.     Art.  IV,  §§  25i/o.  26 

Fish  and  game  districts. 

Sec.  25i/>.  The  legislature  may  provide  for  tlie  di- 
vision of  the  state  into  fish  and  game  districts,  and  may 
enact  such  laws  for  the  protection  of  fish  and  game 
therein  as  it  may  deem  appropriate  to  the  respective 
districts.     (Amendment  adopted  November  4,  1902.) 

Lotteries  prohibited — Purchase  and  sale  of  shares  of 
stock  to  be  regulated. 

See.  2G.  The  legislature  shall  have  no  power  to  au- 
thorize lotteries  or  gift  enterprises  for  any  purpose 
and  shall  pass  laws  to  prohibit  the  sale  in  this  state  of 
lottery  or  gift  enterprise  tickets  or  tickets  in  any 
scheme  in  the  nature  of  a  lottery.  The  legislature  shall 
pass  laws  to  prohibit  the  fictitious  buying  and  selling 
of  the  shares  of  the  capital  stock  of  corporations  in  any 
stock  board,  stock  exchange  or  stock  market  under  the 
control  of  any  corporation  or  association.  All  con- 
tracts for  the  purchase  or  sale  of  shares  of  the  capital 
stock  of  any  corporation  or  association  without  any  in- 
tention on  the  part  of  one  party  to  deliver  and  of  the 
other  party  to  receive  the  shares,  and  contemplating 
merely  the  payment  of  differences  between  the  con- 
tract and  market  prices  on  divers  days,  shall  be  void, 
and  neither  party  to  any  such  contract  shall  be  entitled 
to  recover  any  damages  for  failure  to  perform  the  same, 
or  any  money  paid  thereon,  in  any  court  of  this  state. 
(Amendment  adopted  November  3,  1908.) 


Art,  IV,  §  26        CONSTITUTION  OF  1879.  168 

[ORIGINAL  SECTION.] 
Sec.  26.  The  legislature  shall  have  no  power  to  authorize 
lotteries  or  gift  enterprises  for  any  purpose,  and  shall  pass 
laws  to  prohibit  the  sale  in  this  state  of  lottery  or  gift  enter- 
prise tickets,  or  tickets  in  any  scheme  in  the  nature  of  a  lot- 
tery. The  legislature  shall  pass  laws  to  regulate  or  prohibit 
the  buying  and  selling  of  the  shares  of  the  capital  stock  of 
corporations  in  any  stock  board,  stock  exchange,  or  stock  mar- 
ket under  the  control  of  any  association.  All  contracts  for 
the  sale  of  shares  of  the  capital  stock  of  any  corporation  or 
association,  on  margin  or  to  be  delivered  at  a  future  day,  shall 
be  void,  and  any  money  paid  on  such  contracts  may  be  recov- 
ered by  the  party  paying  it  by  suit  in  any  court  of  competent 
jurisdiction, 

LOTTERIES. — Under  this  section  an  ordinance  making  the 
mere  possession  of  a  lottery  ticket  a  misdemeanor  is  valid. 
(Collins  V.  Lean,  68  Cal.  2S4,  9  Pac.  173.) 

Trading  stamps  and  coupons  are  not  a  lottery.  (Ex  parte 
Drexel,  147  Cal.  763,  82  Pac.  429,  2  L.  R.  A.,  N.  S.,  588,  3  Ann, 
Cas.  878.) 

SALE  OF  STOCK  ON  MARGIN. — This  provision  is  remedial, 
not  penal.  (Parker  v,  Otis,  130  Cal.  322,  92  Am.  St.  Rep.  56, 
62  Pac.  571.) 

It  is  not  in  conflict  with  the  federal  constitution.  (Parker 
V,  Otis,  130  Cal.  322,  92  Am.  St.  Rep.  56,  62  Pac.  571.) 

"Whether  or  not  a  particular  transaction  is  in  violation  of 
this  provision  is  a  question  of  fact,  (Baldwin  v.  Zadig,  104 
Cal.  594,  38  Pac.  363.) 

This  provision  will  not  be  extended  so  as  to  forbid  the  de- 
livery of  stock  as  a  conditional  payment  for  the  purchase  of 
land,  with  a  guaranty  of  cash  value,  and  an  agreement  to  take 
it  back  at  the  end  of  two  years,  upon  request,  and  to  make  the 
payments  in  cash.      (Maurer  v.  King,  127  Cal.  114,  59  Pac.  290.) 

An  undisclosed  principal  may  recover  money  paid  by  his 
agent  upon  a  contract  in  violation  of  this  section.  (Parker  V. 
Otis,  130  Cal.  322,  92  Am,  St,  Rep.  56,  62  Pac.  571.) 


169  CONSTITUTION  OF  1879.        Art.  IV,  §  26 

This  provision  is  not  to  be  confined  to  the  particular  person 
handing  over  the  money.  (Parker  v.  Otis,  130  Cal.  322,  92  Am. 
St.  Rep.  56,  62  Pac.  571.) 

This  provision  will  not  be  so  construed  as  to  permit  an 
evasion  of  it.  (Parker  v.  Otis,  130  Cal.  322,  92  Am.  St.  Eep. 
56,  62  Pac.  571.) 

An  agreement  by  which  the  broker  is  to  purchase  stock, 
charging  the  customer  with  commissions  and  the  interest  on 
the  money  advanced,  and  holding  the  stocks  as  security  until 
their  sale,  the  customer  simplj'  receiving  and  paying  the  differ- 
ence between  the  buying  and  selling  values  of  the  stock,  is  in 
violation  of  this  section.  (Cashman  v.  Root,  89  Cal.  373,  23  Am. 
St.  Rep.  482,  26  Pac.  883,  12  L.  R,  A.  511.) 

The  payment  of  a  mere  margin  of  the  cost  price  of  stock  to 
brokers,  under  an  agreement  that  the  brokers  were  to  make 
advances  for  the  purchaser,  and  hold  the  stock  purchased  as 
security  for  their  advances,  with  power  to  sell  to  protect  their 
interest,  without  delivery  to  the  purchaser  of  any  particular 
shares  of  stock  purchased,  but  with  readiness  of  the  brokers  at 
any  time  on  demand  to  deliver  a  like  number  of  shares  upon 
payment  of  all  balance  due,  is  within  the  prohibition  of  this 
section.  (Parker  v.  Otis,  130  Cal.  322,  92  Am.  St.  Rep.  56,  62 
Pac.  571.) 

A  contract  made  with  stockbrokers  for  the  purpose  of  specu- 
lating in  stocks,  to  purchase  a  number  of  shares  on  margin, 
without  knowing  of  whom  or  where  they  were  to  be  bought, 
to  be  delivered  at  a  future  day,  if  at  all,  with  the  under- 
standing that  in  case  of  decline  margin  was  to  be  kept  good, 
and  brokers  to  retain  shares  as  security  and  sell  when  security 
should  be  endangered,  violates  this  provision.  (Stillvvell  v. 
Cutter,   146   Cal.   657,   80  Pac.   1071.) 

One  who  sues  to  recover  money  voluntarily  paid  for  the 
purchase  of  stocks  on  margins  or  to  be  delivered  at  a  future 
day,  in  violation  of  this  provision,  is  not  entitled  to  recover 
interest  thereon.     (Baldwin  v.  Zadig,  104  Cal.  594,  38  Pac.  363.) 

Evidence  held  to  show  a  sale  upon  margins.  (Poelitz  v. 
Wickersham,  150  Cal.  238,  88  Pac.  911.) 


Art.  IV,  §  27       CONSTITUTION  OP  1879.  170 

Congressional  and  senatorial  districts. 

Sec.  27.  When  a  congressional  district  shall  be  com- 
posed of  two  or  more  counties,  it  shall  not  be  separated 
by  any  county  belonging  to  another  district.  No  county, 
or  city  and  county,  shall  be  divided  in  forming  a  con- 
gressional district  so  as  to  attach  one  portion  of  a 
county,  or  city  and  county,  to  another  county,  or  city 
and  county,  except  in  cases  where  one  county,  or  city 
and  county,  has  more  population  than  the  ratio  required 
for  one  or  more  congressmen ;  but  the  legislature  may 
divide  any  county,  or  city  and  county,  into  as  many 
congressional  districts  as  it  may  be  entitled  to  by  law. 
Any  county,  or  city  and  county,  containing  a  popula- 
tion greater  than  the  number  required  for  one  con- 
gressional district,  shall  be  formed  into  one  or  mor^B 
congressional  districts,  according  to  the  population 
thereof,  and  any  residue,  after  forming  such  district  or 
districts,  shall  be  attached  by  compact  adjoining  as- 
sembly districts,  to  a  contiguous  county  or  counties,  and 
form  a  congressional  district.  In  dividing  a  county,  or 
city  and  county,  into  congressional  districts,  no  assembly 
district  shall  be  divided  so  as  to  form  a  part  of  more 
than  one  congressional  district,  and  every  such  con- 
gressional district  shall  be  composed  of  compact  con- 
tiguous assembly  districts. 

CONGRESSIONAL    DISTRICTS.— As    to    the    apportionment 
of  the  state  in  general,  see  note  to  section  6  of  this  article. 


171  CONSTITUTION  OF  1879.     Art.  IV,  §§  28-30 

Elections  by  legislature  to  be  viva  voce. 

Sec.  28.  In  all  elections  by  the  legislature  the  mem- 
bers thereof  shall  vote  viva  voce,  and  the  votes  shall  be 
entered  on  the  journal. 

General  appropriation  bill,  what  to  contain. 

Sec.  29.  The  general  appropriation  bill  shall  contain 
no  item  or  items  of  appropriation  other  than  such  as 
are  required  to  pay  the  salaries  of  the  state  officers, 
the  expenses  of  the  government,  and  of  the  institutions 
under  the  exclusive  control  and  management  of  the 
state. 

GENERAL  APPROPRIATION  BILL.— The  general  appro- 
priation bill  cannot  create  an  office.  (Lewis  v.  Colgan,  115 
Cal.  529,  47  Pac.  357.) 

Restriction  on  appropriations  and  grants  of  aid. 

Sec.  30.  Neither  the  legislature,  nor  any  county, 
city  and  county,  township,  school  district,  or  other 
municipal  corporation,  shall  ever  make  an  appropriation, 
or  pay  from  any  public  fund  whatever,  or  grant  any- 
thing to  or  in  aid  of  any  religious  sect,  church,  creed, 
or  sectarian  purpose,  or  help  to  support  or  sustain  any 
school,  college,  university,  hospital,  or  other  institution 
controlled  by  any  religious  creed,  church,  or  sectarian 
denomination  whatever;  nor  shall  any  grant  or  donation 
of  personal  property  or  real  estate  ever  be  made  by  the 
state,   or   any   city,    city   and   county,   town,   or   other 


Art.  IV,  §  31        CONSTITUTION  OF  1879.  172 

municipal  corporation  for  any  religious  creetl,  church, 
or  sectarian  purpose  whatever;  provided,  that  nothing 
in  this  section  shall  prevent  the  legislature  granting  aid 
pursuant  to  section  twenty-two  of  this  article. 

Credit  of  state  or  municipalities  not  to  be  loaned. 

Sec.  31.  The  legislature  shall  have  no  power  to  give 
or  to  lend,  or  to  authorize  the  giving  or  lending,  of  the 
credit  of  the  state,  or  of  any  county,  city  and  county, 
city,  township,  or  other  political  corporation  or  sub- 
division of  the  state  now  existing,  or  that  may  be  here- 
after established,  in  aid  of  or  to  any  person,  associa- 
tion, or  corporation,  whether  municipal  or  otherwise,  or 
to  pledge  the  credit  thereof,  in  any  manner  whatever, 
for  the  payment  of  the  liabilities  of  any  individual,  as- 
sociation, municipal  or  other  corporation  whatever;  nor 
shall  it  have  power  to  make  any  gift,  or  authorize  the 
making  of  any  gift,  of  any  public  money  or  thing  of 
value  to  any  individual,  municipal  or  other  corpora- 
tion whatever;  provided,  that  nothing  in  this  section 
shall  prevent  the  legislature  granting  aid  pursuant  to 
section  twenty-two  of  this  article;  and  it  shall  not  have 
power  to  authorize  the  state,  or  any  political  subdivision 
thereof,  to  subscribe  for  stock,  or  to  become  a  stock- 
holder in  any  corporation  whatever. 

AID  TO  PRIVATE  ENTERPRISE.— An  appropriation  to  a 
railroad  company  to  aid  in  building  a  railroad,  in  considera- 
tion of  valuable  services,  is  not  a  gift  or  loan  of  the  credit 
of  the  state.     (People  v.  Pacheco,  27  Cal.  175.) 


Art.  IV,  Sec.  31.    Insert  at  Page  172. 

Sec.  31.  The  legislature  shall  have  no  power  to  give 
or  to  lend,  or  to  authorize  the  giving  or  lending,  of 
the  credit  of  the  state,  or  of  any  county,  city  and 
county,  city,  township,  or  other  political  corporation 
or  subdivision  of  the  state  now  existing,  or  that  may 
be  hereafter  established,  in  aid  of  or  to  any  person, 
association,  or  corporation,  whether  municipal  or 
otherwise,  or  to  pledge  the  credit  thereof,  in  any  man- 
ner whatever,  for  the  payment  of  the  liabilities  of  any 
individual,  association,  municipal  or  other  corporation 
whatever;  nor  shall  it  have  power  to  make  any  gift, 
or  authorize  the  making  of  any  gift,  of  any  public 
money  or  thing  of  value  to  any  individual,  municipal 
or  other  corporation  whatever;  provided,  that  nothing 
in  this  section  shall  prevent  the  legislature  granting 
aid  pursuant  to  section  twenty-two  of  this  article ;  and 
it  shall  not  have  power  to  authorize  the  state  or  any 
political  subdivision  thereof,  to  subscribe  for  stock, 
or  to  become  a  stockholder  in  any  corporation  shall 
prevent  the  legislature  granting  aid  pursuant  to  sec- 
tion twenty-two  of  this  article;  and  it  shall  not  have 
power  to  authorize  the  state,  or  any  political  sub- 
division thereof,  to  subscribe  for  stock,  or  to  become 
a  stockholder  in  any  corporation  whatever;  provided, 
further,  that  irrigation  districts  for  the  pin'pose  of 
acquiring  the  control  of  any  entire  international  water 
system  necessary  for  its  use  and  purposes,  a  part  of 
which  is  situated  in  the  United  States,  and  a  part 
thereof  in  a  foreign  country,  may  iu  the  manner 
authorized  liy  law,  ac(iuire  the  stock  of  any  foreign 
corporation  which  is  the  owner  of.  or  which  holds  the 
title  to  the  part  of  such  system  situated  in  a  foreign 
country.      (Aiiiciidmciit  adopted  November  8,  1914.) 


173  CONSTITUTION  OF  1879.        Art.  IV,  §  31 

Under  the  former  constitution,  the  legislature  might  compel 
a  county  to  become  a  suliscribcr  to  a  railroad,  and  the  legis- 
lature was  the  sole  judge  of  the  question  as  to  whether  the 
railroad  was  a  public  benefit.  (Napa  Valley  R.  E.  Co.  v. 
Napa  Co.,  30  Cal.  435.) 

GIFTS. — A  statute  will  not  be  held  unconstitutional  on  the 
ground  that  it  makes  a  gift,  unless  its  invalidity  appears  upon 
its  face  or  from  facts  of  which  the  court  takes  judicial  notice. 
(Conlin  v.  Supervisors,  99  Cal.  17,  37  Am.  St.  Rep.  17,  33 
Pac.  753,  21  L.  R.  A.  474;  Stevenson  v.  Colgan,  91  Cal.  649, 
25  Am.  St.  Rep.  230,  27  Pac.  1089,  14  L.  R.  A.  457;  Rankin 
V.  Colgan,  92  Cal.  605,  28  Pac.  673;  Bourn  v.  Hart,  93  Cal. 
321,  27  Am.  St.  Rep.  203,  28  Pac.  951,  15  L.  R.  A.  431.) 

The  courts  will  take  judicial  notice  that  in  no  case  would 
a  city  be  liable  for  any  portion  of  the  expense  of  street  im- 
provements; and,  therefore,  an  act  appropriating  money  for 
the  same  is  unconstitutional.  (Conlin  v.  Supervisors,  99  Cal. 
17,  37  Am.  St.  Rep.  17,  33  Pac.  753,  21  L.  R.  A.  474.) 

A  gift  as  used  in  this  section  includes  all  appropriations 
for  which  there  is  no  authority  or  enforceable  claim,  or  which 
rest  alone  upon  some  moral  or  equitable  obligation,  which  in 
the  mind  of  a  generous  or  even  just  individual,  dealing  with 
his  own  money,  might  prompt  him  to  recognize  as  worthy  of 
reward.  (Conlin  v.  Supervisors,  99  Cal.  17,  37  Am.  St.  Rep. 
17,  33  Pac.   753,  21  L.  R.  A.  474.) 

A  gift  within  the  meaning  of  this  section  is  a  gratuitous 
transfer  of  the  property  of  the  state,  made  voluntarily  and 
without  consideration.  (Yosemite  Stage  etc.  Co.  v.  Dunn,  83 
Cal.   264,  23  Pac.  369.) 

Under  the  former  constitution  the  legislature  might  author- 
ize the  payment  of  claims  invalid  in  law,  but  equitable  and 
just  in  themselves.  (Blanding  v.  Burr,  13  Cal.  343;  Creighton 
V.   San  Francisco,  42   Cal.  446.) 

But  a  mere  moral  obligation  will  not  make  a  transaction 
other  than  a  gift.  (Molineux  v.  California,  109  Cal.  378,  50 
Am.  St.  Rep.  49,  42  Pac.  34.) 

The  legislature  has  no  power  to  make  gifts  to  its  employees 
or  to  allow  them  extra  compensation  after  service  rendered. 
(Robinson  v.  Dunn,  77  Cal.  473,  11  Am.  St.  Rep.  297,  19  Pac. 
878.) 


Art.  IV,  §  31        CONSTITUTION 'op  1879.  174 

The  legislature  has  no  power  to  create  a  liabHity  against 
the  state  for  any  act  of  negligence  on  the  part  of  its  officers. 
(Chapman  v.  State,  104  Cal.  690,  43  Am.  St.  Eep.  158,  38  Pac. 
457.> 

The  legislature  has  power  to  waive  the  statute  of  limitations 
in  respect  to  a  claim  against  the  state.  (Bickerdike  v.  State 
of  California,  144  Cal.  681,  78  Pac.  270.) 

A  mere  change  in  the  remedy  does  not  create  a  liability 
against  the  state.  (Chapman  v.  State,  104  Cal.  690,  43  Am. 
St.  Eep.  158,  38  Pac.  457.) 

An  act  attempting  retroactively  to  exempt  resident  nephews 
and  nieces  from  the  payment  of  unpaid  taxes  upon  collateral 
inheritances  is  in  violation  of  this  provision.  (Estate  of 
Stanford,  126  Cal.  112,  54  Pac.  259,  58  Pac.  462,  45  L.  E.  A. 
788.) 

A  purchase  of  an  unexpired  lease  of  the  Yosemite  and 
Wawona  wagon  road,  made  by  the  Yosemite  commissioners,  is 
not  a  gift.  (Yosemite  Stage  etc.  Co.  v.  Dunn,  83  Cal.  264,  23 
Pac.  369.) 

A  law  attempting  to  confer  a  right  to  recover  interest  on 
coupons  upon  which  there  was  before  no  right  to  recover  in- 
terest is  a  gift.  (Molineux  v.  California,  109  Cal.  378,  50  Am. 
St.   Eep.  49,  42  Pac.  34.) 

An  act  creating  an  exempt  fireman's  relief  fund,  and  re- 
quiring munieiiaalities  to  aid  exempt  firemen  who  never  ren- 
dered them  any  service,  and  thus  creating  a  liability  where 
none  existed  before,  is  in  violation  of  this  section.  (Taylor  v. 
Mott,  123  Cal.  497,  56  Pac.  256.) 

As  to  whether  a  contract  by  a  municipal  corporation  to 
pay  money  to  any  person  or  corporation  to  secure  the  con- 
struction of  a  railroad  would  be  in  violation  of  this  section, 
see  Higgins  v.  San  Diego  Water  Co.,  118  Cal.  524,  546,  45 
Pac.  824,  50  Pac.  670. 

An  act  providing  a  bounty  on  coyote  scalps  does  not  con- 
stitute a  gift.  (Ingram  v.  Colgan,  106  Cal.  113,  46  Am.  St. 
Eep.  221,  38  Pac.  315,  39  Pac.  437,  28  L.  E.  A.  187.) 

The  mere  fact  that  the  city  enjoyed  the  actual  advantage 
of  certain  street  improvements  does  not  create  any  moral 
obligation,  and  cannot  support  a  statute  appropriating  money 
for  the  same.  (Conlin  v.  Supervisors,  99  Cal.  17,  37  Am.  St. 
Eep.  17,  33  Pac.  753,  21  L.  E.  A.  474.) 


175  CONSTITUTION  OF  1879.       Art.  IV,  §  31 

An  act  appropriating  five  tlioiisand  dollars  for  the  benefit  of 
the  sufferers  from  the  Tia  Juana  floods  is  clearly  violative  of 
this  provision.  (Patty  v.  Colgan,  97  Cal.  251,  31  Pac.  1133, 
18  L.  R.  A.  744.) 

An  appropriation  in  payment  of  a  claim  for  damages  on 
account  of  personal  injuries  sustained  while  in  the  service  of 
the  state,  and  for  which  the  state  is  not  responsible,  is  a  gift. 
(Bourn  v.  Hart,  93  Cal.  321,  27  Am.  St.  Eep.  203,  28  Pac.  951, 
15  L.  E.  A.  431.) 

An  act  creating  a  police  life  and  health  in.surance  fund,  and 
providing  for  the  payment  into  such  fund  of  a  certain  portion 
of  the  salaries  of  police  officers,  does  not  make  a  gift  of 
public  monej%     (Penuie  v.  Eeis,  80  Cal.  266,  22  Pac.   176.) 

An  act  directing  the  payment  of  the  salary  of  an  officer 
of  an  irrigation  district  out  of  the  funds  of  the  county  is  in 
violation  of  this  provision.  (Knox  v.  Los  Angeles,  58  Cal. 
59.) 

The  provision  of  the  Political  Code  for  the  repayment  to 
purchasers  of  sv/an:p  lands  of  the  amounts  which  they  had 
paid  for  their  lauds,  being  a  part  of  the  contract  between 
them  and  the  state,  is  not  a  gift  of  public  money.  (McCoid 
V.  Slavin,  143  Cal.  325,  76  Pac.  1104.) 

An  act  providing  for  the  payment  of  fees  to'  jurors  for 
past  services,  where  there  was  no  previous  liability  therefor, 
is  in  violation  of  this  section.  (Powell  v.  Phelan,  138  Cal. 
271,  71  Pac.  335.) 

After  the  right  of  the  state  to  an  inheritance  tax  has  be- 
come vested  by  death,  the  legislature  cannot,  by  repeal  of  the 
act  creating  it,  affect  the  right  of  the  state  thereto.  (Estate 
of  Lander,  6  Cal.  App.  744,  93  Pac.  202.) 

The  amendment  of  1895  to  the  act  providing  for  the  forma- 
tion of  agricultural  associations,  authorizing  the  transfer  of 
all  the  property  of  such  an  association  to  a  private  corporation 
formed  within  the  association,  to  be  used  and  disposed  of  for 
the  benefit  of  such  corporation  and  its  stockholders  (subject 
to  certain  limitations)  is  an  attempted  gift  of  public  property. 
(Sixth  District  Agr.  Assn.  y.  Wright,  154  Cal.  119,  97  Pac. 
144.) 

Under  this  section  the  legislature  is  without  power,  either 
by  the  repeal  of  the  law  in  virtue  of  which  the  right  to  a 
tax   under   the   inheritance  tax   law   vested,   or   by   any   other 


Art.  IV,  §  32        CONSTITUTION  OF  1879.  176 

means,  to  grant  or  donate  it  to  the  successor  in  estate,  or  to 
any  other  person.  (Estate  of  Martin,  153  Cal.  225,  94  Pac. 
1053.) 

After  the  right  of  the  state  to  a  collateral  inheritance  tax 
has  become  vested  by  the  death  of  the  decedent,  the  legislature 
cannot  surrender  the  same  by  any  repeal  or  change  in  the  law. 
(Trippet  v.  State,  149  Cal.  521,  86  Pac.  1084,  8  L.  K.  A.,  N.  S., 
1210.) 

An  appropriation  for  the  support  of  the  veterans  of  the  Civil 
War  at  the  Woman's  Belief  Corps  Home  Association  is  not 
a  gift.     (Board  v.  Nye,  8  Cal.  App.  527,  97  Pac.  208.) 

Extra  compensation  to  officers  forbidden. 

Sec.  32.  The  legislature  shall  have  no  power  to 
grant,  or  authorize  any  county  or  municipal  authority 
to  grant,  any  extra  compensation  or  allowance  to  any 
public  officer,  agent,  servant,  or  contractor,  after  service 
has  been  rendered,  or  a  contract  has  been  entered  into 
and  performed,  in  whole  or  in  part,  nor  to  pay,  or  to 
authorize  the  payment  of,  any  claim  hereafter  created 
against  the  state,  or  any  county  or  municipality  of  the 
state,  under  any  agreement  or  contract  made  without 
express  authority  of  law;  and  all  such  unauthorized 
agreements  or  contracts  shall  be  null  and  void. 

EXTRA  COMPENSATION.— The  word  "law"  as  used  in  this 
section  is  used  in  the  same  sense  as  the  word  "statute,"  and 
includes  an  unconstitutional  statute.  (Miller  v.  Dunn,  72  Cal. 
462,  1  Am.  St.  Rep.  67,  14  Pac.  27.) 

This  section  does  not  prevent  the  legislature  from  making 
an  appropriation  to  pay  a  claim  for  work  done  on  behalf  of 
the  state,  in  pursuance  of  an  act  of  the  legislature,  which  is 
judicially  declared  unconstitutional  after  the  performance  of 
the  work.  (Miller  v.  Dunn,  72  Cal.  462,  1  Am.  St.  Rep.  67, 
14  Pae.  27.) 


177  CONSTITUTION  OF  1879.        Art.  IV,  §  32 

The  legislature  cannot  retroactively  give  an  officer  increased 
compcusation  over  that  fixed  by  law  when  his  term  commenced, 
by  ratifying  the  payment  of  such  increased  compensation. 
(County  of  Butte  v.  Merrill,  141  Cal.  396,  74  Pac.  1036.) 

An  act  creating  an  exempt  firemen's  relief  fund,  and  re- 
quiring municipalities  to  aid  exempt  firemen  who  never  ren- 
dered them  any  service,  and  thus  creating  a  liability  where 
none  existed  before,  is  in  violation  of  this  section.  (Taylor 
V.  Mott,  123  Cal.  497,  56  Pac.  256.) 

The  legislature  has  no  power  to  make  gifts  to  its  employees 
or  to  allow  them  extra  compensation  after  service  rendered. 
(Robinson  v.  Dunn,  77  Cal.  473,  11  Am.  St.  Rep.  297,  19  Pac. 
878.) 

A  contract  by  a  board  of  supervisors,  employing  the  district 
attorney  to  try  a  suit  in  another  county  after  the  expiration 
of  his  term  of  oflQce,  does  not  increase  his  salary  as  district 
attorney,  and  is  valid.  (Jones  v.  Morgan,  67  Cal.  308,  7  Pac. 
734.) 

An  act  making  an  appropriation  to  pay  the  salary  of  an 
officer  during  a  certain  period  before  the  amount  of  the  salary 
has  been  fixed  is  not  in  violation  of  this  section.  (Smith  v. 
Dunn,  64  Cal.  164,  28  Pac.  232.) 

An  act  providing  for  a  police  life  and  health  insurance  fund 
does  not  grant  an  extra  compensation  in  violation  of  this  sec- 
tion.     (Pennie  v.  Reis,  80  Cal.  260,  22  Pac.  176.) 

A  contract  by  the  clerk  of  the  board  of  supervisors  to  collect 
a  claim  against  the  state  and  divide  the  commission  with  the 
district  attorney  is  in  violation  of  this  section.  (Power  v. 
May,  114  Cal.  207,  46  Pac.  6.) 

Although  there  is  no  express  authority  of  law  for  the 
board  of  examiners  to  appoint  an  expert,  they  have  the  power, 
since,  in  addition  to  its  express  powers,  a  board  has  such 
additional  powers  as  are  necessary  for  the  due  and  efficient 
exercise  of  powers  expressly  granted,  or  as  may  be  fairly 
implied.     (Lewis  v.  Colgan,  115  Cal.  529,  47  Pac.  357.) 

An  act  appropriating  money  for  the  salary  of  an  expert  to 
the  board  of  examiners  is  valid,  and  the  employment  of  such 
expert  by  the  board  is  not  void  as  being  without  express  au- 
thority of  law.  (Lrewis  v.  Colgan,  115  Cal.  529,  47  Pac.  357.) 
Constitution — 12 


Art.  IV,  §§  33,  34    constitution  op  1879.  178 

Charges  of  gas  and  telegraijh  corporations  to  be  regu- 
lated. 

Sec.  33.  The  legislature  shall  pass  laws  for  the  regu- 
lation and  limitation  of  the  charges  for  services  per- 
formed and  commodities  furnished  by  telegraph  and 
gas  corporations,  and  the  charges  by  corporations  or  in- 
dividuals for  storage  and  wharfage,  in  which  there  is 
a  public  use;  and  where  laws  shall  provide  for  the 
selection  of  any  person  or  officer  to  regulate  and  limit 
such  rates,  no  such  person  or  officer  shall  be  selected 
by  any  corporation  or  individual  interested  in  the  busi- 
ness to  be  regulated,  and  no  person  shall  be  selected 
who  is  an  officer  or  stockholder  in  any  such  corporation. 

WATER  RATES. — As  to  water  and  gas  rates,  see  note  to 
section   1,  article   14,   and   section   19,   article   11. 

This  section  does  not  make  it  necessary  for  the  legislature 
to  pass  laws  regulating  the  manner  in  which  the  authority 
conferred  by  section  19,  article  11,  shall  be  exercised,  before 
that  section  becomes  operative.  (Denninger  v.  Recorder's 
Court,  145   Cal.  629,  79  Pac.  360.) 

Special  appropriation  bill,  restriction  as  to. 

Sec.  34.  No  bill  making  an  appropriation  of  money, 
except  the  general  appropriation  bill,  shall  contain 
more  than  one  item  of  appropriation,  and  that  for  one 
single  and  certain  purpose  to  be  therein  expressed. 

APPROPRIATIONS. — The  fact  that  an  act  making  two  or 
more  distinct  appropriations  has  but  one  general  purpose  will 
not  render  it  consistent  with  this  provision  of  the  constitution. 
(Murray  v.  Colgan,  94  Cal.  435,  29  Pac.  871.) 


179  CONSTITUTION  OF  1879.       Art.  IV,  §  35 

An  act  making  an  appropriation  for  a  county  for  ra-inie  fi'oar, 
and  also  an  appropriution  for  the  salary  of  a  state  super- 
intendent of  ramie  culture,  is  in  violation  of  this  section, 
(Murray  v.  Colgan,  94  Cal.  435,  29  Pac.   871.) 

An  act  appropriating  money  for  the  purchase  of  a  site  for  a 
home  for  feeble-minded  children,  and  for  the  erection  of 
buildings  thereon,  is  not  in  violation  of  this  section.  (People 
V.  Dunn,  80  Cal.  211,  13  Am.  St.  Kep.  118,  22  Pac.  140.) 

An  act  making  an  appropriation  to  pay  the  separate  claims 
of  five  diflferent  persons  for  services  rendered  a  receiver  ap- 
pointed at  the  suit  of  the  state  violates  this  section.  (Sullivan 
V.  Gage,  145  Cal.  759,  79  Pac.  537.) 

See,  also,  People  v.  Counts,  89  Cal.  15,  19,  26  Pac.  612;  State 
V.  Sloan,  53  S.  W.  47. 

Lobbying  defined — Punislinient  for. 

Sec.  35.  Any  person  who  seeks  to  influence  the  vote 
of  a  member  of  the  legislature  by  bribery,  promise  of 
reward,  intimidation,  or  any  other  dishonest  means, 
shall  be  guilty  of  lobbying,  which  is  hereby  declared  a 
felony;  and  it  shall  be  the  duty  of  the  legislature  to 
provide,  by  law,  for  the  punishment  of  this  crime. 
Any  member  of  the  legislature,  who  shall  be  influenced 
in  his  vote  or  action  upon  any  matter  pending  before 
the  legislature  by  any  reward,  or  promise  of  future 
reward,  shall  be  deemed  guilty  of  a  felony,  and  upon 
conviction  thereof,  in  addition  to  such  punishment  as 
may  be  provided  by  law,  shall  be  disfranchised  and 
forever  disqualified  from  holding  any  office  or  public 
trust.  Any  person  may  be  compelled  to  testify  in  any 
lawful  investigation  or  judicial  proceeding  against  any 
person  who  may  be  charged  with  having  committed  the 


Art.  IV,  §  35       CONSTITUTION  OF  1879.  180 

offense  of  bribery  or  corrupt  solicitation,  or  with  having 
been  influenced  in  his  vote  or  action,  as  a  member  of  the 
legislature,  by  reward,  or  promise  of  future  reward, 
and  shall  not  be  permitted  to  withhold  his  testimony 
upon  the  ground  that  it  may  criminate  himself  or  sub- 
ject him  to  public  infamy;  but  such  testimony  shall  not 
afterward  be  used  against  him  in  any  judicial  proceed- 
ing, except  for  perjury  in  giving  such  testimony. 

LOBBYING. — The  term  "lobbying"  signifies  to  address  or 
solicit  members  of  a  legislative  body  with  the  purpose  of 
influencing  their  votes.  (Colusa  Co.  v.  Welch,  122  Cal.  428,  55 
Pac.  243;  Le  Tourneux  v.  Gilliss,  1  Cal.  App.  546,  82  Pac.  627.) 

Services  rendered  by  an  attorney  in  endeavoring  to  persuade 
the  members  of  the  legislature  individually  to  act  favorably 
upon  a  bill,  in  which  no  dishonest,  secret,  or  unfair  means  were 
used,  do  not  constitute  "lobbying"  within  the  meaning  of  this 
section.  (Foltz  v.  Cogswell,  86  Cal.  542,  25  Pac.  60.  Approved 
in  Colusa  Co.  v.  Welch,  122  Cal.  428,  55  Pac.  243.) 

A  contract  to  pay  to  secure,  by  means  of  personal  solicita- 
tion, and  by  means  of  private  interviews  with  members  of 
the  legislature,  and  by  means  of  lobbying,  the  defeat  of  a  bill 
pending  in  the  legislature,  is  prohibited  by  this  section. 
(Colusa  Co.  v.  Welch,  122  Cal.  428,  55  Pac.  243.) 

A  contract,  the  object  of  which  is  to  aid  one  of  the  parties 
to  engage  in  the  business  of  lobbying,  will  not  be  enforced. 
(Le  Tourneux  v.  Gilliss.  1  Cal.  App.  546.  82  Pac.  627.) 

In  order  to  show  that  certain  acts  constitute  "lobbying,"  it 
la  not  necessary  to  show  that  any  corrupt  means  were  used  to 
influence  votes.  (Le  Tourneux  t.  Gilliss,  1  Cal.  App.  546,  82i 
Pac.  627.) 

This  section  does  not  take  away  the  power  of  the  legislature 
to  define  legislative  bribery  and  to  fix  the  punishment  therefor. 
(In  re  Bunkers,  1  Cal.  App.  61,  81  Pac.  748.) 

Nor  does  it  limit  the  power  of  the  legislature  itself  to  expel 
a  member  for  bribery  under  section  9  of  this  article.  (French 
V.  Senate,  146  Cal.  604,  80  Pac.  1031,  2  Ann.  Cas.  756.) 


181  CONSTITUTION  OP  1879.        Art.  IV,  §  36 

State  highways. 

Sec.  36.  The  legislature  shall  have  power  to  estab- 
lish a  system  of  state  highways  or  to  declare  any  road 
a  state  highway,  and  to  pass  all  laws  necessary  or  proper 
to  construct  and  maintain  the  same,  and  to  extend  aid 
for  the  construction  and  maintenance  in  whole  or  in 
part  of  any  county  highway.  (Amendment  adopted 
November  4,  1902.)^ 


Art.  V,  §  1  CONSTITUTION  OF  1879.  182 

ARTICLE  V. 

EXECUTIVE  DEPARTMENT. 

§     1.  Executive  power  vested  in  governor. 

§     2.  Election  of  governor  and  term  of  office. 

§     3.  Eligibility  and  qualifications. 

§     4.  Eeturns  of  election — Counting  votes. 

§     5.  Governor  to  be  commander-in-chief  of  militia. 

§     6.  Executive  business  of. 

§     7.  To  see  that  laws  are  executed. 

§     8.  To  fill  vacancies  in  ofiice. 

§     9.  When  to  convene  special  sessions. 

§  10.  Messages  to  legislature. 

§  11.  When  to  adjourn  legislature. 

§  12.  Disability  to  hold  other  offices. 

§  13.  Keeper  of  seal  of  state. 

§  14.  To  sign  and  seal  grants  and  commissions. 

§  15.  Lieutenant-governor — Election  of,  etc. 

§  16.  When  powers  of  governor  devolve  on. 

§  17.  State  officers — Election  and  terms  of  office. 

§  18.  Secretary  of  state — Duties  of. 

§  19.  Compensation  of  state  officers. 

§  20.  Governor — Ineligible  to  United  States  senate. 

Executive  power  vested  in  governor. 

Section  1.  The  supreme  executive  power  of  this 
state  shall  be  vested  in  a  chief  magistrate  who  shall 
be  styled  the  Governor  of  the  State  of  California. 

THE  GOVERNOR.— When  a  ministerial  duty,  affecting  a 
private  right,  is  specially  devolved  on  the  governor  by  law, 
he   may   be   compelled  to   perform   the   same   by   writ   of   man- 


183  CONSTITUTION  OF  1879.     Art.  V,  §§2-4 

date.     (Middleton  v.  Low,  30  Cal.  596;  Harpending  v.  Haight, 
39  Cal.  189,  2  Am.  Eep.  432.) 

Election  of  governor  and  term  of  office. 

Sec.  2.  The  governor  shall  be  elected  by  the  quali- 
fied electors  at  the  time  and  places  of  voting  for  mem- 
bers of  the  assembly,  and  shall  hold  his  office  four  years 
from  and  after  the  first  IMonday  after  the  first  day  of 
January  subsequent  to  his  election,  and  until  his  suc- 
cessor is  elected  and  qualified. 

TERM. — The  term  is  fixed  at  four  years  certain,  with  a 
contingent  extension.  When  this  contingency  happens,  this 
extension  is  as  much  a  part  of  the  entire  term  as  any  portion 
of  the  four  years.     (People  V.  Whitman,  10  Cal.  38.) 

Eligibility  and  qualifications. 

Sec.  3.  No  person  shall  be  eligible  to  the  office  of 
governor  who  has  not  been  a  citizen  of  the  United  States 
and  a  resident  of  this  state  five  years  next  preceding 
his  election,  and  attained  the  age  of  twenty-five  years 
at  the  time  of  such  election. 

Returns  of  election — Counting  votes. 

Sec.  4.  The  returns  of  every  election  for  governor 
shall  be  sealed  up  and  transmitted  to  the  seat  of  gov- 
ernment, directed  to  the  speaker  of  the  assembly,  who 
shall,  during  the  first  week  of  the  session,  open  and 
publish  them  in  the  presence  of  both  houses  of  the  legis- 
lature. The  person  having  the  highest  number  of 
votes  shall  be  governor;  but,  in  case  any  two  or  more 


Art.  V,  §  §  5-8     CONSTITUTION  OF  1879.  184 

have  an  equal  and  the  highest  number  of  votes,  the  legis- 
lature shall,  by  joint  vote  of  both  houses,  choose  one  of 
such  persons  so  having  an  equal  and  the  highest  num- 
ber of  votes  for  governor. 

Governor  to  be  commander-in-chief  of  militia. 

Sec.  5.  The  governor  shall  be  commander-in-chief  of 
the  militia,  the  army  and  navy  of  this  state. 

Executive  business  of. 

Sec.  6.  He  shall  transact  all  executive  business  with 
the  officers  of  government,  civil  and  military,  and  may 
require  information,  in  writing,  from  the  officers  of  the 
executive  department,  upon  any  subject  relating  to  the 
duties  of  their  respective  offices. 

To  see  that  laws  are  executed. 

Sec.  7.  He  shall  see  that  the  laws  are  faithfully 
executed. 

EXECUTE  LAWS. — In  the  absence  of  a  provision  in  the 
"San  Francisco  Sea-Wall  Act,"  for  the  publication  required 
by  article  16,  the  duty  to  provide  for  the  publication  devolved 
upon  the  governor,  (Spear  v.  Eeeves,  148  Cal.  501,  83  Pac. 
432.) 

To  fill  vacancies  in  office. 

Sec.  8.  When  any  office  shall,  from  any  cause,  be- 
come vacant,  and  no  mode  is  provided  by  the  constitu- 
tion and  law  for  filling  such  vacancy,  the  governor  shall 
have  power  to  fill  such  vacancy  by  granting  a  commis- 


185  CONSTITUTION  OF  1879.  Art.  V,  §  8 

sion,  which  shall  expire  at  the  end  of  the  next  session 
of  the  legislature,  or  at  the  next  election  by  the  people. 

APPOINTMENT  OF  OFFICERS.— After  the  issuance  of  the 
commission,  the  governor  cannot  revoke  the  appointment. 
(People  V.   Cazneau,  20   Cal.  503.) 

The  words  "constitution  and  law"  mean  constitution  or  law. 
(People  V.  Nye,  9  Cal.  App.  148,  98  Pac.  241.) 

Where  an  officer  is  to  be  appointed  by  the  governor  by  and 
with  the  consent  of  the  senate,  and  the  governor  makes  an 
appointment  during  the  recess  of  the  legislature,  he  cannot, 
before  such  appointee  is  rejected  by  the  senate,  appoint  an- 
other person  to  the  office.     (People  v.  Mizner,  7  Cal.  519.) 

An  appointment  by  the  governor  only  lasts  till  the  next 
election  by  the  people,     (Brooks  v.  Melony,  15  Cal.  58.) 

The  words  "next  election  by  the  people"  do  not  mean  the 
next  general  election,  or  the  next  election  held  by  the  people, 
but  that  the  appointee  shall  hold  until  some  one  has  been 
regularly  elected  to  fill  that  office  in  the  manner  provided  by 
law;  and  as  applied  to  the  lieutenant-governor  it  means  the 
next  gubernatorial  election.  (People  v.  Budd,  114  Cal.  168, 
45  Pac.  1060,  34  L.  R.  A.  46.) 

The  words  "next  election  by  the  people"  mean  the  next 
election  after  the  vacancy  happens,  and  in  cases  of  judges, 
does  not  mean  the  next  general  judicial  election.  (People  v. 
Mott,  3  Cal.  502.) 

This  provision  is  to  be  read  distrihutively,  so  that,  if  the 
office  is  elective,  the  appointee  shall  hold  till  the  next  election, 
and  if  not  elective,  till  the  end  of  the  next  session  of  the 
legislature,  which  shall  either  elect  a  successor  or  enact  laws 
for  his  election.     (People  v.  Mott,  3  Cal.  5^02.) 

Officers. — The  term  "officer,"  as  used  in  this  section,  is  suffi- 
ciently comprehensive  to  include  all  persons  in  any  public 
station  or  employment  conferred  by  the  government,  and  in- 
cludes the  clerks  of  the  secretary  of  state.  (Vaughn  v.  Eng- 
lish, 8   Cal.  39.) 

Vacancies. — This  provision  applies  only  to  vacancies  occur- 
ring under  circumstances  such  that  the  original  appointing  or 
electing  power  cannot  act.  Such  power  is  limited  by  the 
period  when  the  people  or  the  legislature  can  elect  or  appoint, 


Art.  V,  §  8  CONSTITUTION  OF  1879.  186 

on  the  arrival  of  which  period  his  power  ceases  and  the  right 
of  appointment  returns  to  the  original  appointing  power. 
(People  V.  Fitch,   1  Cal.  519.) 

Before  this  section  can  api^ly  two  things  must  be  shown: 
1.  That  a  vacancy  exists;  and  2.  That  no  mode  of  filling  it 
is  provided  by  law.     (People  v.  Mizner,  7  Cal.  519.) 

This  section  has  no  application  to  the  filling  of  a  vacancy, 
the  mode  of  filling  which  is  provided  by  law.  (People  v. 
Cazneau,  20  Cal.  503;  People  v.  Stratton,  28  Cal.  3S2.) 

As  to  whether  or  not  this  section  has  any  application  to 
local  officers,  see  People  v.  Hammond,  66  Cal.  654,  6  Pac.  741. 

The  power  to  fill  an  office  carries  with  it,  by  implication, 
the  power  to  fill  a  vacancy,  and  all  necessary  authority  to 
carry  out  the  original  power,  and  prevent  it  from  becoming 
inoperative.     (People  v.  Fitch,  1  Cal.  519.) 

If  an  act  creating  an  office  provides  that  the  incumbent  of 
another  office  shall,  ex  officio,  fill  the  office  created,  and  the 
incumbent  is  prohibited  by  the  constitution  from  holding 
the  office,  there  is  no  vacancy.  (People  v.  Sanderson,  30  Cal. 
160.) 

When  a  district  judge  resigns  during  his  term,  there  is  a 
vacancy  to  be  filled  by  the  governor,  and  the  appointee  will 
hold  until  the  next  general  election,  or  at  most  until  the 
qualification  of  the  person  elected  by  the  people.  (People  v. 
Kosborough,  14  Cal.  180.) 

Where  an  officer  continues  to  discharge  the  duties  of  the 
office  after  the  expiration  of  his  term,  and  before  the  quali- 
fication of  his  successor,  there  is  no  vacancy  in  the  office  within 
the  meaning  of  this  section.  (People  v.  Edwards,  93  Cal.  153, 
28  Pac.  831.) 

Absence  of  a  judge  from  the  state  does  not  create  a  vacancy 
within  the  meaning  of  this  section.  (People  v.  Wells,  2  Cal. 
198,  610,  Anderson,  J.,  dissenting.) 

The  legislature  lias  no  power  to  determine  when  a  vacancy 
exists  within  the  meaning  of  this  section.  (People  v.  Wells, 
2  Cal.  198,  610;  People  v.  Mizner,  7  Cal.  519.) 

When  the  constitution  clearly  enumerates  the  events  that 
shall  constitute  a  vacancy  in  a  particular  office,  all  others 
must  be  excluded.     (People  v.  Whitman,  10  Cal.  38.) 

Failure  of  an  elected  officer  to  qualify  does  not  create  a 
vacancy  in  the  office.     (People  v.  Whitman,   10   Cal.  38.) 


187  CONSTITUTION  OF  1879.  Art.  V,  §  8 

No  vacancy  occurs  by  the  death,  removal,  or  resignation  of 
a  sheriff,  as  the  coroner,  by  operation  of  law,  becomes  sheriff 
upon  the  happening  of  such  an  event.  (People  v.  Phoenix,  6 
Cal.  92.) 

As  to  whether  a  failure  to  elect  a  successor  leaves  an  office 
vacant  at  the  expiration  of  the  term,  see  People  v.  Parker, 
37  Cal.  639. 

Particular  cases. — If  the  office  of  lieutenant-governor  be- 
comes vacant  during  his  term  of  office,  the  governor  may  fill 
the  vacancy  for  the  full  remainder  of  the  unexpired  term. 
(People  v.  Budd,  114  Cal.  168,  45  Pac.  1060,  34  L.  R.  A.  46.) 

Where  a  fire  commissioner  was  appointed  lander  the  act  of 
1878  by  the  judge  of  the  county  court  for  the  term  of  four 
years  and  until  his  successor  is  appointed  and  qualified,  and 
the  new  constitution  superseded  the  appointing  functions  of 
such  judge  and  did  not  vest  them  in  any  other  person,  such 
commissioner  holds  over,  and  there  is  no  vacancy  in  the  office. 
(People  V.  Edwards,  93  Cal.  153,  28  Pac.  831.) 

Where  the  position  of  state  printer  becomes  vacant  during 
the  session  of  the  legislature,  which  was  the  appointing  power, 
the  governor  has  no  power  to  appoint  a  successor.  (People 
V.  Fitch,  1  Cal.  519.) 

Where  the  district  judge  was  to  be  appointed  by  the  legis- 
lature for  the  first  term  and  thereafter  elected  by  the  people, 
and  the  legislature  failed  to  appoint,  and  the  governor  appoints 
to  fill  the  vacancy,  the  person  so  appointed  only  holds  till  the 
next  election,  and  not  till  the  next  session  of  the  legislature. 
(People  V.  Mott,  3  Cal.  502.) 

Where  an  officer  is  appointed  by  the  legislature  to  hold  for 
two  years,  and  until  his  successor  is  appointed  and  qualified, 
and  the  succeeding  legislature  fails  to  elect,  the  governor  may 
appoint.     (People  v.  Keid,  6  Cal.   288.) 

Where  the  legislature  fails  to  elect  a  successor  to  an  officer 
at  the  expiration  of  the  term,  the  governor  may  appoint. 
(People  v.  Baine,  6  Cal.  509;  People  v.  Langdon,  8  Cal.  1.) 

Where  the  appointment  of  an  officer  is  vested  in  the  gov- 
ernor, with  the  advice  and  consent  of  the  senate,  and  the  term 
expires  during  the  recess  of  the  senate,  the  governor  may  fill 
such  vacancy  for  the  full  term,  subject  only  to  be  defeated 
by  nonconcurrence  by  the  senate.  (I'eople  v.  Addison,  10  Caf. 
1.) 


Art.  V,§§  9-11     CONSTITUTION  OF  1879.  188 

When  the  legislature  provides  that  in  case  of  a  vacancy  in  a 
particular  office  a  board  shall  fill  it  until  the  next  session  of 
the  legislature,  the  filling  of  the  vacancy  is  provided  for  within 
the  meaning  of  this  section,  and  no  vacancy  is  caused  by  the 
failure  of  the  legislature  to  elect.  (People  v.  Parker,  37  Cal. 
639.) 

When  to  convene  special  sessions. 

Sec.  9.  He  may,  on  extraordinary  occasions,  con- 
vene the  legislature  by  proclamation,  stating  the  pur- 
poses for  which  he  has  convened  it,  and  when  so  con- 
vened it  shall  have  no  power  to  legislate  on  any  subjects 
other  than  those  specified  in  the  proclamation,  but  may 
provide  for  the  expenses  of  the  session  and  other  mat- 
ters incidental  thereto. 

EXTRA  SESSIONS.— The  confirmation  of  appointments  by 
the  governor  is  not  legislation  within  the  meaning  of  this 
section.      (People  v.  Blanding,  63  Cal.  333.) 

But  the  proposing  of  constitutional  amendments  is  such  legis- 
lation.     (People  v.  Curry,  130  Cal.  82,  62  Pac.  516.) 

The  governor  is  the  sole  judge  of  the  existence  of  an  ex- 
traordinary occasion  for  convening  the  legislature.  (Whitman 
V.  Wilmington  etc.  E.  E.  Co.,  2  Harr.  (Del.)  514,  33  Am.  Dec. 
411.) 

Messages  to  legislature. 

Sec.  10.  He  shall  communicate  by  message  to  the 
legislature,  at  every  session,  the  condition  of  the  state, 
and  recommend  such  matters  as  he  shall  deem  expedient. 

When  to  adjourn  legislature. 

Sec.  11.  In  case  of  a  disagreement  between  the  two 
houses  with   respect  to  the  time  of  adjournment,   the 


189  CONSTITUTION  OF  1879.     Art.  V,  §§  12-14 

governor  shall  have  power  t(5  adjourn  the  legislature  to 
such  time  as  he  may  think  proper;  provided,  it  be  not 
beyond  the  time  fixed  for  the  meeting  of  the  next  legis- 
lature. 

Disability  to  hold  other  oTices. 

See.  12.  No  person  shall,  while  holding  any  office 
under  the  United  States  or  this  state,  exercise  the  office 
of  governor  except  as  hereinafter  expressly  provided. 

Keeper  of  seal  of  state. 

Sec.  13.  There  shall  be  a  seal  of  this  state,  which 
shall  be  kept  by  the  governor,  and  used  by  him  officially, 
and  shall  be  called  "The  Great  Seal  of  the  State  of 
California." 

To  sign  and  seal  grants  and  commissions. 

Sec.  14.  All  grants  and  commissions  shall  be  in  the 
name  and  by  the  authority  of  the  people  of  the  state 
of  California,  sealed  with  the  great  seal  of  the  state, 
signed  by  the  governor,  and  countersigned  by  the  secre- 
tary of  state. 

TAX  DEEDS. — The  fact  that  a  tax  deed  is  not  executed  in 
the  manner  provided  by  this  section  does  not  affect  its  valid- 
ity.     (Schamblin  v.  Maus,  6  Cal.  App.  261,  91  Pac.  1020.) 

Lands  acquired  by  the  state  for  nonpayment  of  taxes  are  not 
within  the  purview  of  this  section,  and  tlio  state  may  make 
the  tax  collector  or  any  other  person  its  agent  and  attorney 
in  fact  for  the  passing  of  the  legal  title  to  such  lands. 
(Bank  of  Lenioore  v.  Fulgham,  151  Cal.  234,  90  Pac.  936.) 


Art.  V,  §§  15, 16     CONSTITUTION  OF  1879.  190 

Lieutenant-governor — Election  of,  etc. 

Sec.  15.  A  lieutenant-governor  shall  be  elected  at 
the  same  time  and  place,  and  in  the  same  manner,  as 
the  governor,  and  his  term  of  office  and  his  qualifica- 
tions shall  be  the  same.  lie  shall  be  president  of  the 
senate,  but  shall  only  have  a  casting  vote  therein. 
(Amendment  adopted  November  8,  1898.) 

[ORIGINAL  SECTION.] 
Sec.  15.  A  lieutenant-governor  shall  be  elected  at  the  same 
time  and  place,  and  in  the  same  manner,  as  the  governor;  and 
his  term  of  office  and  his  qualifications  of  eligibility  shall 
also  be  the  same.  He  shall  be  president  of  the  senate,  but 
shall  have  only  a  casting  vote  therein.  If,  during  a  vacancy 
of  the  office  of  governor,  the  lieutenant-governor  shall  be  im- 
peached, displaced,  resign,  die,  or  become  incapable  of  per- 
forming the  duties  of  his  office,  or  be  absent  from  the  state, 
the  president  pro  tempore  of  the  senate  shall  act  as  governor 
until  the  vacancy  be  filled  or  the  disability  shall  cease.  The 
lieutenant-governor  shall  be  disqualified  from  holding  any  other 
office,  except  as  specially  provided  in  this  constitution,  during 
the  term  for  which'  he  shall  have  been  elected. 

When  powers  of  governor  devolve  on. 

Sec.  16.  In  case  of  the  impeachment  of  the  governor, 
or  his  removal  from  office,  death,  inability  to  discharge 
the  powers  and  duties  of  his  office,  resignation,  or 
absence  from  the  state,  the  powers  and  duties  of  the 
office  shall  devolve  upon  the  lieutenant-governor  for  the 
residue  of  the  term,  or  until  the  disability  shall  cease. 
And  should  the  lieutenant-governor  be  impeached,  dis- 


191  CONSTITUTION  OF  1879.         Art.  V,  §  17 

placed,  resign,  die,  or  become  incapable  of  performing 
the  duties  of  his  office,  or  be  absent  from  the  state,  the 
president  pro  tempore  of  the  senate  shall  act  as  gov- 
ernor until  the  vacancy  in  the  office  of  governor  shall 
be  filled  at  the  next  general  election,  when  members  of 
the  legislature  shall  be  chosen,  or  until  such  disability 
of  the  lieutenant-governor  shall  cease.  In  case  of  a 
vacancy  in  the  office  of  governor  for  any  of  the  reasons 
above  named,  and  neither  the  lieutenant-governor  nor 
the  president  pro  tempore  of  the  senate  succeed  to  the 
powers  and  duties  of  governor,  then  the  powers  and 
duties  of  such  office  shall  devolve  upon  the  speaker  of 
the  assembly,  until  the  office  of  governor  shall  be  filled 
at  such  general  election,  (Amendment  adopted  Novem- 
ber 8,  1898.) 

[ORIGINAL  SECTION.] 
Sec.  16.  In  case  of  the  impeachment  of  the  governor,  or  his 
removal  from  otfice,  death,  inability  to  discharge  the  powers 
and  duties  of  the  said  office,  resignation,  or  absence  from  the 
state,  the  powers  and  duties  of  the  office  shall  devolve  upon 
the  lieutenant-governor  for  the  residue  of  the  term,  or  until 
the  disability  shall  cease.  But  when  the  governor  shall,  with 
the  consent  of  the  legislature,  be  out  of  the  state  in  time  of 
war,  at  the  head  of  any  military  force  thereof,  he  shall  con- 
tinue commander-in-chief  of  all  the  military  force  of  the  state. 

State  officers — Election  and  terms  of  office. 

Sec.  17.     A  secretary  of  state,  a  controller,  a  treas- 
urer, an  attorney  general,  and  a  surveyor  general  shall 


Art.  V,  §  17         CONSTITUTION  OF  1879.  192 

be  elected  at  the  same  time  and  places,  and  in  the  same 
manner  as  the  governor  and  lieutenant-governor,  and 
their  terms  of  office  shall  be  the  same  as  that  of  the 
governor. 

EXECUTIVE  OFFICERS.— Neither  an  appointment  by  the 
governor,  nor  an  election  by  the  people,  had  before  the  election 
of  governor,  can  deprive  the  people  of  their  right  to  fill  the 
office  of  controller  at  such  election.  (Brooks  v.  Melouy,  15 
Cal.  58.) 

The  controller  is  a  ministerial  officer  and  has  no  discretion 
as  to  the  issuance  of  warrants  for  appropriations.  (McCauley 
V.  Brooks,  16  Cal.  11.) 

Although  the  constitution  is  wholly  silent  as  to  the  duties  of 
the  attorney  general,  secretary  of  state,  controller,  and  treas- 
urer, and  contains  no  express  limitation  on  the  power  of  the 
legislature  as  to  the  same,  yet  a  limitation  on  their  power  is 
necessarily  implied  from  the  nature  of  these  offices.  (Love  v. 
Baehr,  47  Cal.  364.) 

The  legislature  may  devolve  on  the  secretary  of  state  the  per- 
formance of  services  foreign  to  the  office,  and  may  pay  him  a 
salary  therefor  in  addition  to  his  salary  as  secretary  of  state. 
(Melone  v.  State,  51  Cal.  549;  Green  v.  State,  51  Cal.  577.) 

In  assigning  duties  to  these  officers,  the  legislature  possesses 
a  wide  discretion,  and  while  the  legislature  cannot  compel  the 
attorney  general  to  perform  the  duties  of  a  member  of  the 
board  of  examiners,  it  may  compensate  him  for  doing  so  volun- 
tarily.    (Love  V.  Baehr,  47  Cal.  364.) 

The  term  of  the  controller  begins  on  the  first  Monday  after 
the  first  day  of  Januarv.  (People  v.  Nye,  9  Cal.  App.  148,  98 
Pac.  241.) 

Where  an  incumbent  of  the  office  of  controller  dies  after  his 
election  to  a  second  term  and  before  his  qualification,  an  ap- 
pointee for  the  balance  of  the  unexpired  term  would  hold  only 
to  the  beginning  of  the  second  term.  (People  v.  Nye,  9  Cal. 
App.  148,  98  Pac.  241.) 


193  CONSTITUTION  OF  1879.     Art,  V,  §  §  18, 19 

Secretary  of  state — Duties  of. 

Sec.  18.  The  secretary  of  state  sliall  keep  a  correct 
record  of  the  official  acts  of  the  legislative  and  executive 
departments  of  the  government,  and  shall,  when  re- 
quired, lay  the  same,  and  all  matters  relative  thereto, 
before  either  branch  of  the  legislature,  and  shall  per- 
form such  other  duties  as  may  be  assigned  him  by  law. 

Compensation  of  state  oflficers. 

Sec.  19.  The  governor,  lieutenant-governor,  secre- 
tary of  state,  controller,  treasurer,  attorney  general,  and 
surveyor  general  shall,  at  stated  times  during  their  con- 
tinuance in  office,  receive  for  their  services  a  compensa- 
tion which  shall  not  be  increased  or  diminished  during 
the  term  for  which  they  shall  have  been  elected,  which 
compensation  is  hereby  fixed  for  the  following  officers, 
as  follows:  Governor,  ten  thousand  dollars  per  annum; 
lieutenant-governor,  four  thousand  dollars,  the  secretary 
of  state,  controller,  treasurer,  and  surveyor  general,  five 
thousand  dollars  each  per  annum,  and  the  attorney 
general,  six  thousand  dollars  per  annum,  such  compensa- 
tion to  be  in  full  for  all  services  by  them  respectively 
rendered  in  any  official  capacity  or  employment  what- 
soever during  their  respective  terms  of  office ;  provided, 
Jiowever,  that  the  legislature  may,  by  law,  diminish  the 
compensation  of  any  or  all  of  such  officers,  but  in  no 
case  shall  have  the  power  to  increase  the  wime  above 

Constitution — 13 


Art.  V,  §  19         CONSTITUTION  OF  1879.  194 

the  sums  hereby  fixed  by  this  constitution.  No  salary 
shall  be  authorized  by  law  for  clerical  service,  in  any 
office  provided  for  in  this  article,  exceeding  eighteen 
hundred  dollars  per  annum  for  each  clerk  employed. 
The  legislature  may,  in  its  discretion,  abolish  the  office 
of  surveyor  general;  and  none  of  the  officers  hereinbe- 
fore named  shall  receive  for  their  own  use  any  fees  or 
perquisites  for  the  performance  of  any  official  duty. 
(Amendment  adopted  November  3,  1908.) 

[ORIGINAL  SECTION.] 
Sec.  19.  The  governor,  lieutenant-governor,  secretary  of 
state,  controller,  treasurer,  attorney  general,  and  surveyor  gen- 
eral shall,  at  stated  times  during  their  continuance  in  office, 
receive  for  their  services  a  compensation  which  shall  not  be 
increased  or  diminished  during  the  term  for  which  they  shall 
have  been  elected,  which  compensation  is  hereby  fixed  for  the 
following  officers  for  the  two  terms  next  ensuing  the  adoption 
of  this  constitution,  as  follows:  Governor,  six  thousand  dollars 
per  annum;  lieutenant-governor,  the  same  per  diem  as  may  be 
provided  by  law  for  the  speaker  of  the  assembly,  to  be  allowed 
only  during  the  session  of  the  legislature;  the  secretary  of 
state,  controller,  treasurer,  attorney  general,  and  surveyor  gen- 
eral, three  thousand  dollars  each  per  annum,  such  compensation 
to  be  in  full  for  all  services  by  them  respectively  rendered  in 
any  official  capacity  or  employment  whatsoever  during  their 
respective  terms  of  office;  provided,  however,  that  the  legis- 
lature, after  the  expiration  of  the  terms  hereinbefore  men- 
tioned, may,  by  law,  diminish  the  compensation  of  any  or  all 
of  such  officers,  but  in  no  case  shall  have  the  power  to  increase 
the  same  above  the  sums  hereby  fixed  by  this  constitution.  No 
salary  shall  be   authorized  by  law  for  clerical  service,  in  any 


Art.  V,  Sec.  20.     Insert  at  Page  195. 

Sec.  20.  United  States  senators  shall  be  elected  by 
the  people  of  the  state  in  the  manner  provided  by  law. 
(Amendment  adopted  November  3,  1914.) 


195  CONSTITUTION  OF  1879.  Art.  V,  §  20 

oflice  provided  for  in  this  article,  exceeding  sixteen  hundred 
dollars  per  annum  for  each  clerk  employed.  The  legislature 
may,  in  its  discretion,  abolish  the  office  of  surveyor  general;  and 
none  of  the  officers  hereinbefore  named  shall  receive  for  their 
own  use  any  fees  or  perquisites  for  the  performance  of  any 
official  duty. 

Salaries  of  state  officers. — The  original  provision  of  this  sec- 
tion could  not  affect  the  power  of  the  people  to  amend  the  same 
and  increase  the  salaries  of  incumbents.  (Kingsbury  v.  Nye,  9 
CaL  App.  574,  99  Pac.  985.) 

The  amendment  to  this  section  in  1908  applied  to,  and  in- 
creased the  salaries  of,  the  inciimbents.  (Kingsbury  v.  Nye,  9 
Cal.  App.  574,  99  Pac.  985.) 

Governor — Ineligible  to  United  States  senate. 

Sec.  20.  The  governor  shall  not,  during  his  term  of 
office,  be  elected  a  senator  to  the  senate  of  the  United 
States. 

UNITED  STATES  SENATE.— This  provision  is  invalid  and 
not  binding  upon  the  United  States  senate.  The  qualification 
of  members  of  that  body  being  fixed  by  the  United  States  con- 
stitution, additional  ones  cannot  be  required  by  the  states. 
(Barney  v.  MeCreery,  1  Cong.  El.  Cas.  167;  Turney  v.  Marshall, 
2  Cong.  El.  Cas.  107;  Trumbull's  Case,  2  Cong.  El.  Cas.  618.) 


Art.  VI,  §  1         CONSTITUTION  OP  1879.  196 

ARTICLE  VI. 

JUDICIAL    DEPAKTMENT. 

§     1.  Judicial  powers. 

§     2.  Supreme  court,  how  constituted. 

§     3.  Election  of  supreme  justices. 

§     4.  Jurisdiction  of  supreme  court  and  courts  of  appeaL 

§     4J,  Harmless  errors  to  be  disregarded. 

§     5.  Superior  court,  jurisdiction. 

§     6.  Superior  court,  how  constituted. 

§     7.  Superior  judges,  apportionment  of  business. 

§     8.  Judge  may  hold  court  in  other  county — Judge  pro  tem- 
pore. 

§     9.  Leave  of  absence — Limitation  of  time. 

§  10.  Justices  and  judges,  how  removed. 

§  11.  Justices  of  the  peace,  provision  for. 

§  12.  Courts  of  record. 

§  13.  Jurisdiction  of  inferior  courts  to  be  fixed  by  legislature. 

§  14,  Clerks  of  courts  and  court  commissioners. 

§  15.  Judicial  officers  not  to  receive  fees  and  perquisites. 

§  16.  Supreme  court  opinions  to  be  published. 

§  17.  Compensation  of  justices  and  judges. 

§  18.  Justices  and  judges  ineligible  to  other  offices. 

§  19.  Charges  to  juries. 

§  20.  Style  of  process. 

§  21.  Reporter  of  supreme  court  decisions. 

§  22.  Judges  not  to  practice  law. 

§  23.  Eligibility  of  justices  and  judges. 

§  24.  Condition  precedent  to  draft  of  salary. 

§  25.  Supreme  court  commission. 

Judicial  powers. 

Section  1.     The  judicial  power  of  the  state  shall  be 
vested  in  the  senate,  sitting  as  a  court  of  impeachment, 


197  CONSTITUTION  OP  1879.  Art.  VI,  §  1 

in  a  supreme  court,  district  courts  of  appeal,  superior 
courts  and  such  inferior  courts  as  the  legislature  may 
establish  in  any  incorporated  city  or  town,  township, 
county,  or  city  and  county.  (Amendment  approved 
October  10,  1911.) 

[AMENDMENT  OP  1904.] 
Section  1.  The  judicial  power  of  the  state  shall  be  vested  in 
the  senate,  sitting  as  a  court  of  impeachment,  in  a  supreme  court, 
district  courts  of  appeal,  superior  courts,  justices  of  the  peace, 
and  such  inferior  courts  as  the  legislature  may  establish  in  any 
incorporated  city  or  town,  or  city  and  county.  (Amendment 
adopted  November  8,  1904.) 

[ORIGINAL  SECTION.] 
Section  1.  The  judicial  power  of  the  state  shall  be  vested 
in  the  senate  sitting  as  a  court  of  impeachment,  in  a  supreme 
court,  superior  courts,  justices  of  the  peace,  and  such  inferior 
courts  as  the  legislature  may  establish  in  any  incorporated  city 
or  town,  or  city  and  county. 

JUDICIAL  DEPARTMENT  —  Pre- constitutional  courts.— The 

correctness  of  the  proceedings  of  the  courts  exercising  civil  juris- 
diction in  California  between  the  time  of  its  acquisition  by  the 
United  States  and  the  establishment  of  a  state  government  are 
not  to  be  tested  by  the  strict  rules  of  the  civil  or  common  law. 
(Ryder  v.  Cohn,  37  Cal.  69.) 

Judicial  power. — It  is  the  inherent  authority  not  only  to  de- 
cide but  to  make  binding  orders  or  judgments  which  constitutes 
judicial  power.  (People  v.  Hayne,  83  Cal.  Ill,  17  Am.  St.  Rep. 
217,  23  Pac.  1,  7  L.  R.  A.  348.) 

The  legislature  cannot  enjoin  upon  a  private  person  the  duty 
of  settling  a  bill  of  exceptions,  nor  require  a  judge  to  continue 
to  discharge  judicial  duties  after  his  term  of  office  has  expired, 
though  it  may  authorize  him  to  settle  such  bill.  (Leach  v. 
Aitken,  91  Cal,  484,  28  Pac.  777.) 


Art.  VI,  §  1  CONSTITUTION  OF  1879,  198 

The  matter  of  the  adoption  of  children  is  not  part  of  the  judi- 
cial power  within  the  meaning  of  this  section,  and  may,  there- 
fore, be  conferred  upon  a  judge  as  distinguished  from  the  court. 
(In  re  Stevens,  83  Cal.  322,  17  Am.  St.  Rep.  252,  23  Pac.  379.) 

A  tribunal  presided  over  by  a  police  judge  is  a  court.  (Boys' 
and  Girls'  Aid  Soc.  v.  Eeis,  71  Cal.  627,  12  Pac.  796.) 

The  proceeding  to  establish  title  to  land  in  San  Francisco 
when  the  records  were  destroyed  by  fire  is  judicial  in  its  nature. 
(Title  etc.  Restoration  Co.  v.  Kerrigan,  150  Cal.  289,  119  Am. 
St.  Rep.  199,  88  Pac.  356.) 

The  legislature  cannot  confer  jurisdiction  of  special  cases 
upon  a  judge  as  distinguished  from  a  court.  (Spencer  etc.  Co. 
V.  Vallejo,  48  Cal.  70.) 

An  act  creating  supreme  court  commissioners  to  assist  the 
court — which  commissioners  simply  examine  the  record  and  re- 
port to  the  court  their  conclusions — is  not  unconstitutional  as 
vesting  judicial  power  in  the  commissioners.  (People  v.  Hayne, 
83  Cal.  Ill,  17  Am.  St.  Rep.  217,  23  Pac.  1,  7  L.  R.  A.  348.) 

The  legislature  may  provide  that  the  city  council  shall  be  the 
final  and  exclusive  judge  of  the  election  of  all  municipal  officers. 
(Carter  v.  Superior  Court,  138  Cal.  150,  70  Pac.  1067.) 

The  legislature  cannot  invest  ministerial  officers  with  the 
power  to  punish  individuals  by  fine  and  imprisonment.  (Burns 
V.  Superior  Court,  140  Cal.  1,  73  Pac.  597.) 

The  legislature  may  invest  judicial  officers  with  power  to 
punish  for  contempt.  (Crocker  v.  Conrey,  140  Cal.  213,  73  Pac. 
1006.) 

Inferior  courts. — A  freeholders'  charter  is  not  a  law  within 
the  meaning  of  this  section,  and,  therefore,  an  inferior  court 
cannot  be  established  by  such  charter.  (People  v.  Toal,  85  Cal. 
333,  24  Pac.  603;  Miner  v.  Justice's  Court,  121  Cal.  264,  53  Pac. 
795;  Ex  parte  Sparks,  120  Cal.  395,  52  Pac.  715.) 

This  section  limits  the  power  of  the  legislature  to  the  estab- 
lishment of  municipal  and  inferior  courts  within  the  limits  of 
an  incorporated  city  or  town.      (Ex  parte  Stratman,  39  Cal.  517.) 

The  municipal  criminal  court  of  San  Francisco  is  an  inferior 
court  within  the  meaning  of  this  section.  (Ex  parte  Stratman, 
39  Cal.  517;  People  v.  Nyland,  41  Cal.  129.) 

The  police  court  of  San  Francisco  was  not  abolished  by  the 
constitutional  amendments  in  18G2.  (People  v.  Provines,  34  Cal. 
520.) 


199  CONSTITUTION  OP  1879.  Art.  VI,  §  1 

The  term  "municipal  courts"  hrs  a  legal  meaning  and  includes 
mayors'  and  recorders'  courts.     (Uridias  v.  Morrill,  22  Cal.  473.) 

The  legislature  may  vest  in  inferior  courts  jurisdiction  of 
cases  of  which  the  courts  established  by  the  constitution  have 
jurisdiction.  (Hickman  v.  O'Neal,  10  Cal.  292;  Scale  v.  Mitchell, 
5  Cal.  401;  Vassault  v.  Austin,  36  Cal.  691;  Curtis  v.  Richards, 
9  Cal.  33.) 

Under  this  section,  the  legislature  has  power  to  create  police 
or  other  inferior  courts  in  any  incor]iorated  city  or  town  which 
has  not  taken  advantage  of  the  permission  granted  by  section 
81/^  of  article  11  to  include  in  its  charter  provision  for  the 
establishment  of  a  police  court.  (Fleming  v.  Hance,  153  Cal. 
162,  94  Pac.  620.) 

The  board  of  drainage  commissioners  created  by  the  "Sacra- 
mento Drainage  District"  act,  in  equalizing  assessments  and 
correcting  errors  therein,  is  not  exercising  judicial  functions  in 
violation  of  the  constitution.  (People  v.  Sacramento  Drainage 
Dist.,  155  Cal.  373,  103  Pac.  207.) 

The  legislature  may  authorize  a  municipal  court  to  send  its 
process  beyond  the  territorial  limits  of  the  municipality. 
(Hickman  v.  O'Neal,  10  Cal.  292.  Meyer  v.  Kalkman,  6  Cal. 
582,  overruled.) 

Judges  of  the  police  court  of  San  Francisco  are  not  affected 
by  the  provisions  of  the  County  Government  Act,  but  derive 
tlieir  power  from  this  section  and  the  act  of  1893.  (Kahn  v. 
Sutro,  114  Cal.  316,  46  Pac.  87,  33  L.  R.  A.  620;  In  re  Mitchell, 
120  Cal.  384,  52  Pac.  799.  But  see  People  v.  Cobb,  133  Cal. 
74,   65   Pac.   325.) 

An  act  creating  police  courts  in  cities  having  fifteen  thou- 
sand, and  under  eigliteen  thousand,  inhabitants,  not  being  in 
conformity  with  the  general  classification  of  municipal  cor- 
porations, is  void.  (Ex  parte  Giambonini,  117  Cal.  573,  49 
Pac.  732.) 

An  act  creating  a  justice's  court  for  one  particular  named 
town,  and  fixing  its  jurisdiction,  is  not  authorized  by  this  sec- 
tion.    (Miner  v.  .Justice's  Court,  121  Cal.  264,  53  Pac.  795.) 

An  act  jiroviding  for  a  police  judge  necessarily  presupposes 
a  police  court.      (Kx  parte  Mauch,  134  Cal.  50O,  66  Pac.  734.) 

The  late  superior  court  of  San  Francisco  was  an  inferior 
court,  but  its  process  ran  outside  of  the  city.  (Chipman  v. 
Bowman,  14  Cal.  157;  McCauley  v.  Fulton,  44  Cal.  355.) 


x\rt.  VI,  §  2         CONSTITUTION  OF  1879.  200 

Supreme  court,  how  constituted. 

Sec,  2.  The  supreme  court  shall  consist  of  a  chief 
justice  and  six  associate  justices.  The  court  may  sit 
in  departments  and  in  bank,  and  shall  always  be  open 
for  the  transaction  of  business.  There  shall  be  two  de- 
partments, denominated,  respectively,  department  one 
and  department  two.  The  chief  justice  shall  assign  three 
of  the  associate  justices  to  each  department,  and  such 
assignment  may  be  changed  by  him  from  time  to  time. 
The  associate  justices  shall  be  competent  to  sit  in  either 
department,  and  may  interchange  with  each  other  by 
agreement  among  themselves  or  as  ordered  by  the  chief 
justice.  Each  of  the  departments  shall  have  the  power 
to  hear  and  determine  causes  and  all  questions  aris- 
ing therein,  subject  to  the  provisions  hereinafter  con- 
tained in  relation  to  the  court  in  bank.  The  presence 
of  three  justices  shall  be  necessary  to  transact  any 
business  in  either  of  the  departments,  except  such  as 
may  be  done  at  chambers,  and  the  concurrence  of  three 
justices  shall  be  necessary  to  pronounce  a  judgment. 
The  chief  justice  shall  apportion  the  business  to  the  de- 
partments, and  may,  in  his  discretion,  order  any  cause 
pending  before  the  court  to  be  heard  and  decided  by 
the  court  in  bank.  The  order  may  be  made  before  or 
after  judgment  pronounced  by  a  department;  but 
where  a  cause  has  been  allotted  to  one  of  the  depart- 
ments, and  a  judgment  pronounced  thereon,  the  order 
must  be  made  within  thirty  days  after  such  judgment, 


201  CONSTITUTION  OF  1879.         Art.  VI,  §  2 

and  concurred  in  by  two  associate  justices,  and  if  so 
made  it  shall  have  the  effect  to  vacate  and  set  aside  the 
judgment.  Any  four  justices  may,  either  before  or 
after  judgment  by  a  department,  order  a  case  to  be  heard 
in  bank.  If  the  order  be  not  made  within  the  time 
above  limited  the  judgment  shall  be  final.  No  judg- 
ment by  a  department  shall  become  final  until  the  ex- 
piration of  the  period  of  thirty  days  aforesaid,  unless 
approved  by  the  chief  justice,  in  writing,  with  the  con- 
currence of  two  associate  justices.  The  chief  justice 
may  convene  the  court  in  bank  at  any  time,  and  shall 
be  the  presiding  justice  of  the  court  when  so  convened. 
The  concurrence  of  four  justices  present  at  the  argu- 
ment shall  be  necessary  to  pronounce  a  judgment  in 
bank;  but  if  four  justices,  so  present,  do  not  concur  in 
a  judgment,  then  all  the  justices  qualified  to  sit  in  the 
cause  shall  hear  the  argument;  but  to  render  a  judg- 
ment a  concurrence  of  four  judges  shall  be  necessary. 
In  the  determination  of  causes,  all  decisions  of  the 
court  in  bank  or  in  departments  shall  be  given  in  writ- 
ing, and  the  grounds  of  the  decision  shall  be  stated. 
The  chief  justice  may  sit  in  either  department,  and 
shall  preside  when  so  sitting,  but  the  justices  assigned 
to  each  department  shall  select  one  of  their  number  as 
presiding  justice.  In  case  of  the  absence  of  the  chief 
justice  from  the  place  at  which  the  court  is  held,  or  his 
inability  to  act,  the  associate  justices  shall  select  one 
of  their  own  number  to  perform  the  duties  and  exercise 


Art.  VI,  §  2         CONSTITUTION  OF  1879.  202 

the  powers  of  the  chief  justice  during  such  ahsence  or 
inability  to  act. 

SUPREME  COURT. — This  section  by  implication  forbids  the 
legislature  to  increase  the  number  of  justices  of  the  supreme 
court.     (People   v.   Wells,   2   Cal.   198,   610.) 

In  the  absence  of  any  provision  on  the  subject,  all  the  judges 
composing  the  court  must  sit.  (People  v.  Ah  Chung,  5  Cal. 
103;  People  v.  Barbour,  9  Cal.  230.) 

The  word  "heard"  means  the  consideration  and  determina- 
tion of  a  cause  by  the  court.  (Niles  v.  Edwards,  95  Cal.  41, 
30  Pac.  134.) 

"When  a  cause  is  submitted  on  briefs,  all  the  justices  are 
deemed  to  be  present,  and  all  of  them  are  qualified  to  join  in 
the  decision,  (Philbrook  v.  Newman,  148  Cal.  172,  82  Pac. 
772.) 

It  is  not  necessary  that  four  justices  be  physically  present 
at  an  oral  argument,  nor  that  all  of  the  justices  qualified  to 
"sit"  shall  literally  "hear"  an  argument;  but  whenever  there  is 
an  oral  argument,  only  the  justices  who  were  present  at  such 
argument  are  authorized  to  take  part  in  the  decision  of  the 
court.     (Niles  v.  Edwards,  95  Cal.  41,  30  Pac.  134.) 

It  is  not  necessary  that  four  justices  should  concur  in  the 
judgment  upon  the  same  grounds.  (Philbrook  v.  Newman,  148 
Cal.  172,  82  Pac.  772.) 

The  fact  that  one  of  the  judges  who  participated  in  a  deci- 
sion of  the  court  did  not  hear  the  oral  argument  does  not 
render  the  judgment  absolutely  void.  It  is  an  irregularity 
which  may  be  waived  by  the  parties.  (Blanc  v.  Bowman,  22 
Cal.  23.) 

The  constitution  requires  the  concurrence  of  four  judges  to 
pronounce  a  judgment,  and  a  mere  failure  to  agree  cannot  have 
the  effect,  ipso  facto,  of  an  affirmance;  and  where  the  personnel 
of  the  court  is  soon  to  be  changed,  a  motion  to  afl3rm  the  judg- 
ment on  account  of  an  equal  division  of  opinion  will  be  denied. 
(Luco  V.  De  Toro,  88  Cal.  26,  25  Pac.  983,  11  L.  R.  A.  543.) 

But  where  there  is  no  probability  of  an  immediate  change 
in  the  personnel  of  the  court,  the  judgment  will  be  affirmed. 
(Frankel  v.  Deidesheimer,  93  Cal.  73,  28  Pac.  794;  Santa  Rosa 
City  R.  R.  Co.  v.  Railway  Co.,  ll!i  Cal.  436,  44  Pac.  733.) 


203  CONSTITUTION  OF  1879.         Art.  VI,  §  2 

Judicial  days. — The  supreme  court  is  always  open  for  tlie 
transaction  of  business.  (People  v.  Heacock,  10  Cal.  App.  450, 
102  Pac.  543.) 

Opinions. — The  legislature  cannot  require  the  supreme  court 
to  give  in  writing  reasons  for  its  decisions.  (Houston  v.  Will- 
iams, 13  Cal.  24,  73  Am.  Dec.  565.) 

Rehearings. — In  an  original  proceeding  in  the  supreme  court 
the  proper  practice  is  to  move  for  a  rehearing,  and  a  motion 
for  a  new  trial  is  not  proper.  (In  re  Philbrook,  108  Cal.  14, 
40  Pac.  1061;  Grangers'  Bank  v.  San  Francisco,  101  Cal.  1&8, 
35  Pac.  642.) 

There  is  only  one  supreme  court,  and  the  jurisdiction  which 
is  vested  in  it  may  be  exercised  either  in  bank  or  in  depart- 
ment. The  court  in  bank  has  power  to  correct  an  error  in  or 
modify  a  judgment  rendered  in  a  department,  without  appli- 
cation therefor,  and  without  the  case  being  argued  in  bank. 
(Niles  V.  Edwards,  95  Cal.  41,  30  Pac.  134.) 

Although  a  petition  for  a  rehearing  by  the  court  in  bank  is 
filed  within  thirty  days  after  the  judgment  in  department, 
if  it  does  not  reach  the  hands  of  the  court  until  after  the 
expiration  of  the  period  allowed  by  the  constitution  for  order- 
ing a  rehearing,  the  petition  must  be  denied,  irrespective  of 
its  merits.     (Durgin  v.  Neal,  82  Cal.  595,  23  Pac.  133.) 

The  provision  of  this  section  as  to  the  granting  of  rehear- 
ings in  bank  after  the  decision  by  a  department  does  not 
create  an  implication  against  the  constitutional  power  of  the 
court  in  bank  to  grant  rehearings  in  cases  determined  by  it 
in  bank.  (In  re  Jessup,  81  Cal.  408,  21  Pac.  976,  22  Pac.  742, 
6  L.  R.   A.  594.) 

The  supreme  court,  in  bank,  has  power  to  grant  rehearings 
by  orders  of  the  court  entered  upon  its  minutes,  without  the 
written  signatiures  of  five  justices,  and  the  legislature  cannot 
take  tliat  power  away.  (In  re  Jessup,  81  Cal.  408,  21  Pac. 
&76,  22  Pac.  742,  6  L.  R.  A.  594.) 

An  order  modifying  a  judgment  is  not  rendered  nugatory 
by  reason  of  the  failure  of  the  clerk  to  enter  it  in  the  minutes 
until  after  the  expiration  of  thirty  days  from  the  judgment 
in  department.      (Niles  v.  Edwards,  95  Cal.  41,  30  Pac.  134.) 

The  determination  by  the  court  on  passing  upon  an  appli- 
cation for  a  rehearing  that  the  justice  of  that  court,  and  not 
the  justice  of  the  court  of  appeals  selected  to  act  pro  tempore 


Art,  VI,  §  3  CONSTITUTION  OF  1879.  204 

on  account  of  the  illness  of  the  former,  was  the  proper  one 
to  act,  becomes  the  law  of  the  case,  and  will  not  be  inquired 
into  on  a  motion  to  set  aside  the  rehearing.  (Reese  v.  Colusa 
Gas  etc.  Co.,  151  Cal.  29,  91  Pac.  802.) 

Remittitur. — The  supreme  court  has  no  appellate  jurisdiction 
over  its  own  judgments.     (Leese  v.  Clark,  20  Cal.  387.) 

Therefore,  after  the  issuance  of  the  remittitur,  the  court 
loses  jurisdiction  of  the  cause.  (Blane  v.  Bowman,  22  Cal. 
23;  Grogan  v.  Euckle,  1  Cal.  193;  Mateer  v.  Brown,  1  Cal.  231; 
Davidson  v.  Dallas,  15  Cal.  75;  Herrlich  v.  McDonald,  83  Cal. 
505,  23  Pac.  710;  In  re  Levinson,  108  Cal.  450,  41  Pac.  483,  42 
Pac.  479;  Martin  v.  Wagner,  124  Cal.  204,  56  Pac.  1023.) 

After  the  remittitur  has  been  duly  and  regularly  issued  with- 
out inadvertence,  the  court  has  no  power  to  recall  it,  except 
in  a  case  of  mistake,  fraud,  or  imposition.  (In  re  Levinson, 
108  Cal.  450,  41  Pac.  483,  42  Pac.  479.) 

The  mere  pendency  of  a  motion  to  modify  the  judgment  is 
not  sufficient  ground  for  recalling  the  remittitur,  when  it  was 
issued  without  inadvertence.  (Herrlich  v.  McDonald,  83  Cal. 
505,   23   Pac.   710.) 

Nor  is  the  fact  that  it  was  issued  after  the  death  of  one  of 
the  parties  ground  for  recalling  it.  (Martin  v.  Wagner,  124 
Cal.  204,  56  Pac.  1023.) 

But  the  remittitur  may  be  recalled  if  issued  by  reason  of 
fraud  or  imposition,  (Trumpler  v.  Trumpler,  123  Cal,  248,  55 
Pac,  1008.) 

Election  of  supreme  justices. 

Sec,  3,  The  chief  justice  and  the  associate  justices 
shall  be  elected  by  the  qualified  electors  of  the  state  at 
large  at  the  general  state  elections,  at  the  times  and  places 
at  which  state  officers  are  elected ;  and  the  term  of  office 
shall  be  twelve  years,  from  and  after  the  first  Monday 
after  the  first  day  of  January  next  succeeding  their 
election ;  provided,  that  the  six  associate  judges  elected 
at  the   first   election   shall,   at   their   first   meeting,   so 


205  CONSTITUTION  OF  1879.         Art.  VI,  §  4 

classify  themselves,  by  lot,  that  two  of  them  shall  go 
out  of  office  at  the  end  of  four  years,  two  of  them  at  the 
end  of  eight  years,  and  two  of  them  at  the  end  of  twelve 
years,  and  an  entry  of  such  classification  shall  be  made 
in  the  minutes  of  the  court  in  bank,  signed  by  them, 
and  a  duplicate  thereof  shall  be  filed  in  the  office  of  the 
secretary  of  state.  If  a  vacancy  occur  in  the  office  of 
a  justice,  the  governor  shall  appoint  a  person  to  hold 
the  office  until  the  election  and  qualification  of  a  jus- 
tice to  fill  the  vacancy,  which  election  shall  take  place 
at  the  next  succeeding  general  election,  and  the  justice 
so  elected  shall  hold  the  office  for  the  remainder  of  the 
unexpired  term.  The  first  election  of  the  justices  shall 
be  at  the  first  general  election  after  the  adoption  and 
ratification  of  this  constitution. 

JUSTICES. — Absence  of  a  justice  from  the  state  is  not  such 
a  vacancy  as  can  be  supplied  by  the  executive,  and  an  act 
authorizing  an  appointment  in  such  a  case  is  unconstitutional. 
(People  V.  Wells,  2,  Cal,  198,  610.) 

Jurisdiction  of  supreme  court  and  courts  of  appeal. 

Sec.  4.  The  supreme  court  shall  have  appellate  juris- 
diction on  appeal  from  the  superior  courts  in  all  cases 
in  equity,  except  such  as  arise  in  justices'  courts;  also, 
in  all  cases  at  law  which  involve  the  title  or  possession 
of  real  estate,  or  the  legality  of  any  tax,  impost,  assess- 
ment, toll,  or  municipal  fine,  or  in  which  the  demand, 
exclusive  of  interest,  or  the  value  of  the  property  in 
controversy,  amounts  to  two  thousand  dollars;  also,  in 


Art.  VI,  §  4         CONSTITUTION  OF  1879.  206 

all  such  probate  matters  as  may  be  provided  by  law; 
also,  on  questions  of  law  alone,  in  all  criminal  cases 
where  judgment  of  death  has  been  rendered;  the  said 
court  shall  also  have  appellate  jurisdiction  in  all  cases, 
matters,  and  proceedings  pending  before  a  district  court 
of  appeal  which  shall  be  ordered  by  the  supreme  court  to 
be  transferred  to  itself  for  hearing  and  decision  as  herein- 
after provided.  The  said  court  shall  also  have  power  to 
issue  writs  of  mandamus,  certiorari,  prohibition,  and 
habeas  corpus,  and  all  other  writs  necessary  or  proper  to 
the  complete  exercise  of  its  appellate  jurisdiction.  Each 
of  the  justices  shall  have  power  to  issue  writs  of  habeas 
corpus  to  any  part  of  the  state,  upon  petition  by  or  on  be- 
half of  any  person  held  in  actual  custody,  and  may  make 
such  writs  returnable  before  himself  or  the  supreme  court, 
or  before  any  district  court  of  appeal,  or  before  any 
judge  thereof,  or  before  any  superior  court  in  the  state, 
or  before  any  judge  thereof. 

The  state  is  hereby  divided  into  three  appellate  dis- 
tricts, in  each  of  which  there  shall  be  a  district  court 
of  appeal  consisting  of  three  justices.  The  first  dis- 
trict shall  embrace  the  following  counties:  San  Fran- 
cisco, Marin,  Contra  Costa,  Alameda,  San  Mateo,  Santa 
Clara,  Fresno,  Santa  Cruz,  Monterey,  and  San  Benito. 

The  second  district  shall  embrace  the  following  coun- 
ties: Tulare,  Kings,  San  Luis  Obispo,  Kern,  Inyo,  Santa 
Barbara,  Ventura,  Los  Angeles,  San  Bernardino,  Orange, 
Riverside,  and  San  Diego. 


207  CONSTITUTION  OF  1879.         Art.  VI,  §  4 

The  third  district  shall  embrace  the  following  coun- 
ties: Del  Norte,  Siskiyou,  Modoc,  Humboldt,  Trinity, 
Shasta,  Lassen,  Tehama,  Plumas,  Mendocino,  Lake, 
Colusa,  Glenn,  Butte,  Sierra,  Sutter,  Yuba,  Nevada, 
Sonoma,  Napa,  Yolo,  Placer,  Solano,  Sacramento,  El 
Dorado,  San  Joaquin,  Amador,  Calaveras,  Stanislaus, 
Mariposa,  Madera,  Merced,  Tuolumne,  Alpine,  and 
Mono. 

The  supreme  court,  by  orders  entered  in  its  minutes, 
may  from  time  to  time  remove  one  or  more  counties 
from  one  appellate  district  to  another,  but  no  county 
not  contiguous  to  another  county  of  a  district  shall  be 
added  to  such  district. 

Said  district  courts  of  appeal  shall  hold  their  regular 
sessions  respectively  at  San  Francisco,  Los  Angeles,  and 
Sacramento,  and  they  shall  always  be  open  for  the  trans- 
action of  business. 

The  district  courts  of  appeal  shall  have  appellate 
jurisdiction  on  appeal  from  the  superior  courts  in  all 
cases  at  law  in  which  the  demand,  exclusive  of  interest, 
or  the  value  of  the  property  in  controversy,  amounts 
to  three  hundred  dollars,  and  does  not  amount  to  two 
thousand  dollars;  also,  in  all  eases  of  forcible  and  un- 
lawful entry  and  detainer  (except  such  as  arise  in  jus- 
tices' courts),  in  proceedings  in  insolvency,  and  in  ac- 
tions to  prevent  or  abate  a  nuisance;  in  proceedings  of 
mandamus,  certiorari,  and  prohi])ition,  usurpation  of 
office,  contesting  elections  and  eminent  domain,  and  in 


Art.  VI,  §  4         CONSTITUTION  OF  1879.  208 

such  other  special  proceedings  as  may  be  provided  by 
law  (excepting  cases  in  which  appellate  jurisdiction  is 
given  to  the  supreme  court)  ;  also,  on  questions  of  law 
alone,  in  all  criminal  cases  prosecuted  by  indictment 
or  information  in  a  court  of  record,  excepting  criminal 
cases  where  judgment  of  death  has  been  rendered.  The 
said  courts  shall  also  have  appellate  jurisdiction  in  all 
eases,  matters,  and  proceedings  pending  before  the 
supreme  court  which  shall  be  ordered  by  the  supreme 
court  to  be  transferred  to  a  district  court  of  appeal  for 
hearing  and  decision.  The  said  courts  shall  also  have 
power  to  issue  writs  of  mandamus,  certiorari,  prohibi- 
tion, and  habeas  corpus,  and  all  other  writs  necessary 
or  proper  to  the  complete  exercise  of  their  appellate 
jurisdiction.  Each  of  the  justices  thereof  shall  have 
power  to  issue  writs  of  habeas  corpus  to  any  part  of 
his  appellate  district  upon  petition  by  or  on  behalf  of 
any  person  held  in  actual  custody,  and  may  make  such 
writs  returnable  before  himself  or  the  district  court  of 
appeal  of  his  district,  or  before  any  superior  court 
within  his  district,  or  before  any  judge  thereof. 

The  supreme  court  shall  have .  power  to  order  any 
cause  pending  before  the  supreme  court  to  be  heard 
and  determined  by  a  district  court  of  appeal,  and  to 
order  any  cause  pending  before  a  district  court  of  ap- 
peal to  be  heard  and  determined  by  the  supreme  court. 
The  order  last  mentioned  may  be  made  before  judg- 
ment has  been  pronounced  by  a  district  court  of  appeal. 


209  CONSTITUTION  OF  1879.  Art.  VI,  §  4 

or  within  thirty  days  after  such  judgment  shall  have 
become  final  therein.  The  judgments  of  the  district 
courts  of  appeal  shall  become  final  therein  upon  the 
expiration  of  thirty  days  after  the  same  shall  have  been 
pronounced. 

The  supreme  court  shall  have  power  to  order  causes 
pending  before  a  district  court  of  appeal  for  one  dis- 
trict to  be  transferred  to  the  district  court  of  appeal  of 
another  district  for  hearing  and  decision. 

The  justices  of  the  district  courts  of  appeal  shall  be 
elected  by  the  qualified  electors  within  their  respective 
districts  at  the  general  state  elections  at  the  times  and 
places  at  which  justices  of  the  supreme  court  are 
elected.  Their  terms  of  office  and  salaries  shall  be  the 
same  as  those  of  justices  of  the  supreme  court,  and  their 
salaries  shall  be  paid  by  the  state.  Upon  the  ratification 
by  the  people  of  this  amendment  the  governor  shall 
appoint  nine  persons  to  serve  as  justices  of  the  district 
courts  of  appeal  until  the  first  Monday  after  the  first 
day  of  January  in  the  year  1907,  provided,  that  not 
more  than  six  of  said  persons  shall  be  members  of  the 
same  political  party.  At  the  election  in  the  year  1901) 
nine  of  such  justices  shall  be  elected  as  above  provided, 
and  the  justices  of  each  district  court  of  appeal  shall 
so  classify  themselves  by  lot  that  one  of  them  shall  go 
out  of  office  at  the  end  of  four  years,  one  of  them  at 
the  end  of  eight  years,  and  one  of  them  at  the  end  of 

Constitution — 14 


Art.  VI,  §  4         CONSTITUTION  OF  1879.  210 

twelve  years;  an  entry  of  such  classification  shall  be 
made  in  the  minutes  of  the  court,  signed  by  the  three 
justices  thereof,  and  a  duplicate  thereof  filed  in  the 
office  of  the  secretary  of  state.  If  any  vacancy  occur 
in  the  office  of  a  justice  of  the  district  courts  of  appeal, 
the  governor  shall  appoint  a  person  to  hold  office  until 
the  election  and  qualification  of  a  justice  to  fill  the 
vacancy;  such  election  shall  take  place  at  the  next  suc- 
ceeding general  state  election  as  aforesaid;  the  justice 
then  elected  shall  hold  the  office  for  the  unexpired  terra. 

One  of  the  justices  of  each  of  the  district  courts  of 
appeal  shall  be  the  presiding  justice  thereof,  and  as 
such  shall  be  appointed  or  elected  as  the  case  may  be. 
The  presence  of  three  justices  shall  be  necessary  for  the 
transaction  of  any  business  by  such  court,  except  such 
as  may  be  done  at  chambers,  and  the  concurrence  of 
three  justices  shall  be  necessary  to  pronounce  a  judg- 
ment. 

"Whenever  any  justice  of  the  supreme  court  is  for  any 
reason  disqualified  or  unable  to  act  in  a  cause  pending 
before  it,  the  remaining  justices  may  select  one  of  the 
justices  of  a  district  court  of  appeal  to  act  pro  tempore 
in  the  place  of  the  justice  so  disciualified  or  unable  to  act. 

Whenever  any  justice  of  a  district  court  of  appeal 
is  for  any  reason  disqualified  or  unable  to  act  in  any 
cause  pending  before  it,  the  supreme  court  may  ap- 
point a  justice  of  the  district  court  of  appeal  of  another 
district,  or  a  judge  of  a  superior  court  who  has  not 


211  CONSTITUTION  OP  1879,  Art.  VI,  §  4 

acted  in  the  cause  in  the  court  below,  to  act  pro  tempore 
in  the  place  of  the  justice  so  disqualified  or  unable  to 
act. 

No  appeal  taken  to  the  supreme  court  or  to  a  district 
court  of  appeal  shall  be  dismissed  for  the  reason  only 
that  the  same  was  not  taken  to  the  proper  court,  but  the 
cause  shall  be  transferred  to  the  proper  court  upon 
such  terms  as  to  costs  or  otherwise  as  may  be  just,  and 
shall  be  proceeded  with  therein  as  if  regularly  appealed 
thereto. 

All  statutes  now  in  force  allowing,  providing  for,  or 
regulating  appeals  to  the  supreme  court  shall  apply  to 
appeals  to  the  district  courts  of  appeal  so  far  as  such 
statutes  are  not  inconsistent  with  this  article  and  until 
the  legislature  shall  otherwise  provide. 

The  supreme  court  shall  make  and  adopt  rules  not 
inconsistent  with  law  for  the  government  of  the  supreme 
court  and  of  the  district  courts  of  appeal  and  of  the 
officers  thereof,  and  for  regulating  the  practice  in  said 
courts.     (Amendment  adopted  November  8.  1904.) 

[ORiaiNAL  SECTION.] 
Sec.  4.  The  supreme  court  shall  have  appellate  jurisdiction 
in  all  cases  of  equity,  except  such  as  arise  in  justices'  courts; 
also,  in  all  cases  at  law  which  involve  the  title  or  possession 
of  real  estate,  or  the  legality  of  any  tax,  impost,  assessment, 
toll  or  municipal  fine,  or  in  which  the  demand,  exclusive  of 
interest  or  the  value  of  the  property  in  controversy,  amounts 
to  three  hundred  dollars;  also,  in  cases  of  forcible  entry  and 
detainer,  and   in  proceedings  in  insolvency,  and   in  actions   to 


Art.  VI,  §  4         CONSTITUTION  OP  1879.  212 

prevent  or  abate  a  nuisance,  and  in  all  such  probate  matters 
as  may  be  provided  by  law;  also,  in  all  criminal  cases  prose- 
cuted by  indictment  or  information  in  a  court  of  record  on 
questions  of  law  alone.  The  court  shall  also  have  power  to 
issue  writs  of  mandamus,  certiorari,  prohibition  and  habeas 
corpus,  and  all  other  writs  necessary  or  proper  to  the  complete 
exercise  of  its  appellate  jurisdiction.  Each  of  the  justices 
shall  have  power  to  issue  writs  of  habeas  corpus  to  any  part 
of  the  state,  upon  petition  by  or  on  behalf  of  any  person  held 
in  actual  custody,  and  may  make  such  writs  returnable  before 
himself  or  the  supreme  court,  or  before  any  superior  court 
in  the  state  or  before  any  judge  thereof. 

JURISDICTION — In  general. — The  jurisdiction  of  the  courts 
as  established  by  the  constitution  cannot  be  altered  by  the 
legislature.  (Thompson  v.  Williams,  6  Cal.  88;  Hicks  v.  Bell, 
3  Cal.  219;  Burgoyne  v.  Supervisors,  5  Cal.  9;  Parsons  v. 
Tuolumne  Co.  Water  Co.,  5  Cal.  43,  63  Am.  Dec.  76;  People  v. 
Applegate,  5  Cal.  295;  Fitzgerald  v.  Urton,  4  Cal.  235;  Wilson 
V.  Roach,  4  Cal.  362;  Zander  v.  Coe,  5  Cal.  230;  Haight  v.  Gay, 
8  Cal.  297,  68  Am.  Dec.  323;  People  v.  Peralta,  3  Cal.  379; 
Caulfield  v.  Hudson,  3  Cal.  389.  But  see  Seale  v.  Mitchell, 
5  Cal.  401;   People  v.  Day,  15  Cal.  91.) 

An  affirmative  grant  of  jurisdiction  is  negative  of  all  others. 
(Burgoyne    v.    Supervisors,    5    Cal.    9.) 

But  the  grant  of  original  jurisdiction  to  a  particular  court, 
of  a  particular  class  of  cases,  without  any  words  excluding 
other  courts  from  exercising  jurisdiction  in  the  same  cases,  does 
not  deprive  other  courts  of  concurrent  jurisdiction  in  such 
cases,  when  such  courts  are  given  jurisdiction  in  general  terms 
broad  enough  to  include  such  particular  cases.  (Courtwright 
V.  Bear  River  etc.  Co.,  30  Cal.  573;  Zander  v.  Coe,  5  Cal.  230, 
distinguished.) 

Where  jurisdiction  is  given  in  all  cases  not  otherwise  pro- 
vided for  it  is  not  exclusive.     (People  v.  Fowler,  9  Cal.  85.) 

Consent  will  not  confer  jurisdiction.  (Feillett  v.  Engler,  8 
Cal.   76.) 

Supreme  court. — The  supreme  court  acquired  its  jurisdiction 
from  the  constitution,  and  such  jurisdiction  can  neither  be  en- 


213  CONSTITUTION  OF  187D.         Art.  VI,  §  4 

larged  nor  abridged  by  tbe  legislature.  (In  re  Jessup,  81  Cal. 
408,  21  Pac.  976,  22  Pac.  742,  6  L.  R.  A.  594;  Ex  parte  Attorney 
General,  1  Cal.  85.) 

The  constitution  has  not  clothed  the  supreme  court  with 
the  same  powers  and  jurisdiction  as  the  court  of  king's  bench 
in  England.     (Ex  parte  Attorney  General,  1  Cal.  85.) 

Procedure.^ — The  right  of  appeal  is  conferred  by  the  consti- 
tution, and  statutes  and  rules  of  procedure  for  its  exercise  are 
to  be  liberally  construed;  and  no  appeal  will  be  dismi'^sed  on 
technical  grounds,  when  there  has  been  no  violation  or  dis- 
regard of  any  express  rules  of  procedure.  (Estate  of  Nelson, 
128  Cal.  242,  GO  Pac.  772.) 

The  supreme  court  acquires  jurisdiction  upon  the  filing  of 
the  notice  of  appeal  in  the  lower  court,  and  the  jurisdiction 
is  not  diverted  or  suspended  either  on  account  of  the  failure 
to  file  a  transcript  on  appeal,  or  by  loss  thereof.  (Estate  of 
Davis,  151  Cal.  318,  121  Am.  St.  Eep.  105,  86  Pac.  183,  90 
Pac.  711.) 

When  jurisdiction  is  given  to  the  supreme  court  of  a  par- 
ticular case,  it  has  jurisdiction  of  all  appeals  therein,  whether 
or  not  they  involve  the  merits.  (Rickey  Land  etc.  Co.  v, 
Glader,  6  Cal.  App.  113,  91  Pac.  414.) 

The  legislature  cannot  impair  or  take  away  the  appellate 
jurisdiction  of  the  supreme  court,  but  it  may  prescribe  the 
mode  in  which  appeals  may  be  taken.  (Haight  v.  Gay,  8  Cal. 
297,  68  Am.  Dec.  323.) 

It  is  the  duty  of  the  supreme  court,  whose  jurisdiction  is 
defined  by  the  constitution,  to  secure  uniformity  in  the  admin- 
istration of  justice,  and  the  legislature,  as  a  co-ordinate  branch 
of  the  government,  cannot  interfere  with  that  function,  or 
control  the  use  by  the  appellate  court  of  the  power  and 
discretion  vested  in  it.  (San  Jose  R.  Co.  v.  San  Jose  etc.  Co., 
126  Cal.  322,  58  Pac.  824.) 

The  supreme  court  cannot  exercise  appellate  jurisdiction  by 
means  of  a  writ  of  prohibition,  without  any  appeal,  and  in  a 
case  to  which  its  apyiellate  jurisdiction  does  not  extend.  (Pow- 
elson  V.  Lockwood,  82  Cal.  613,  23  Pac.   143.) 

When  the  constitution  gives  the  supreme  court  jurisdiction, 
and  the  legislature  fails  to  prescribe  the  means  for  taking  the 
appeal,  the  suj)reme  court  has  inherent  power  to  establish  any 
appropriate  system  of  procedure.     (People  v.  Jordan,  65   Cal. 


Art.  VI,  §  4         CONSTITUTION  OF  1879.  21-4 

6U,  4  Pac.  6S3.  But  see  Warner  v.  Ilall,  1  Cal.  90;  Warner 
V.  Kelly,  1  Cal.  91;  White  v.  Lighthall,  1  Cal.  347.) 

If  the  legislature  has  not  provided  a  mode  of  exercising  the 
jurisdiction  conferred  by  the  constitution,  a  case  may  be 
brought  up  from  an  inferior  court  to  the  supreme  court  by 
writ  of  error.  (Ex  parte  Thistleton,  52  Cal.  220;  Adams  v. 
Town,  3   Cal.  247.) 

The  legislature  may  prescribe  tlie  procedure  by  which  the 
jurisdiction  conferred  is  to  be  exercised,  provided  the  regula- 
tions adopted  do  not  substantially  impair  the  constitutional 
power  of  the  court,  or  practically  defeat  its  exercise.  (Ex 
parte  Harker,  49  Cal.  465.) 

Rules. — The  supreme  court  has  power  to  malce  rules  having 
the  force  of  positive  law  so  far  as  the  rights  of  the  parties 
are  concerned,  if  they  do  not  conflict  with  any  act  of  the 
legislature.  (Brooks  v.  Union  Trust  Co.,  146  Cal.  134,  79  Pac. 
843.) 

Rule  XXX  of  the  supreme  court,  requiring  a  petition  for 
rehearing  to  be  served  upon  the  adverse  party  within  twenty 
days  after  judgment  and  allowing  an  answer  thereto,  is  valid. 
(Brooks  v.  Union  Trust  Co.,  146  Cal.  134,  79  Pac.  843.) 

Rules  adopted  by  the  supreme  court  for  the  government  of 
appellate  practice  are  as  much  part  of  our  system  of  procedure 
as  the  rules  promulgated  by  the  legislature;  and  the  conse- 
quence of  a  failure  to  observe  them  rests  upon  the  lawyer 
and  not  the  court.  (Reclamation  Dist.  No.  70  v,  Sherman,  11 
Cal.  App.  399,  105  Pac.  277.) 

Salaries. — The  act  fixing  the  salaries  of  justices  of  the 
supreme  court  at  eight  thousand  dollars  cannot  affect  the  sal- 
aries of  present  incumbents  of  that  court,  and  cannot  be 
looked  to  as  a  measure  of  the  salaries  of  justices  of  district 
courts  of  appeal.  (Harrison  v.  Colgan,  148  Cal.  69,  82  Pac. 
674.) 

Removal  before  judgment. — The  power  to  remove  causes  from 
the  district  court  of  appeal  is  entirely  discretionary,  and  the 
parties  have  no  right  to  insist  upon  the  exercise  of  that  power. 
("People  v.   Davis,   147   Cal.   346,   81   Pac.   718.) 

A  cause  will  not  be  transferred  to  the  district  court  of  ap- 
peal to  accommodate  the  parties  or  to  facilitate  a  decision. 
(Gates  v.   Green,   148  Cal.   728,   84   Pac.   37.) 


215  CONSTITUTION  OF  1879.  Art.  VI,  §  4 

"Where  a  writ  of  proliibitlon  is  applied  for  from  the  supreme 
court  to  prevent  the  trial  of  a  case  of  which  the  district 
court  of  appeal  has  jurisdiction,  the  proceeding  will  be  trans- 
ferred to  that  court.  (Collins  v.  Superior  Court,  147  Cal.  264, 
81  Pac.  509.) 

Where  the  appeal  is  erroneously  taken  to  the  district  court 
of  appeal,  instead  of  to  the  supreme  court,  the  proper  practice 
is  to  file  the  record  in  the  court  to  which  the  appeal  was 
taken  and  to  move  in  that  court  to  transfer  the  cause  to  the 
supreme  court.     (In  re  Russell,  148  Cal.  768,  84  Pac.  155.) 

Removal  after  judgment. — The  supreme  court  will  not  exer- 
cise its  power  to  remove  a  cause  pending  in  a  district  court 
of  appeal  after  decision  for  the  purpose  of  revising  its  de- 
cision upon  CLuestions  of  fact.  (People  v.  Davis,  147  Cal.  346, 
81   Pac.   718.) 

The  supreme  court  will  only  remove  a  case  pending  in  a 
district  court  of  appeal  after  decision  when  it  is  necessary 
to  secure  uniformity  of  decision  or  to  settle  important  ques- 
tions of  law.     (Peoi)le  v.  Davis,  147  Cal.  346,  81  Pac.  718.) 

"Where  one  of  the  justices  signing  an  order  transferring  a 
cause  to  the  supreme  court,  after  a  decision  by  the  court  of 
appeals,  signed  the  order  while  in  the  state,  but  left  the  stats 
before  it  received  the  signatures  of  the  requisite  number  of 
judges  to  make  it  effective,  such  order  is  a  nullity.  (People 
V.  Euef,  14  Cal.  App.  576,  114  Pac.  54.) 

.  Where  the  district  court  of  appeal  has  issued  an  alternative 
writ  of  mandate  which  acts  as  a  stay,  the  effect  thereof  is 
not  affected  by  a  judgment  of  the  court  denying  the  per- 
emptory writ  which  has  not  become  final  by  the  expiration 
»f  thirty  days.     (Noel  v.  Smith,  2  Cal.  App.  158,  83  Pac.  167.) 

The  supreme  court  has  power,  within  thirty  days  after  the 
decision  of  the  district  court  of  appeal  has  become  final,  to 
order  the  cause  heard  and  determined  by  itself.  (Noel  v. 
Smith,  2  Cal.  App.  158,  83  Pac.  167.) 

The  judgment  of  a  district  court  of  appeal  is  not  final  until 
the  expiration  of  thirty  days  after  the  judgment  is  pronounced. 
(Noel  V.  Smith,  2  Cal.  App.  158,  83  Pac.   167.) 

An  order  of  the  district  court  of  appeal  denying  a  rehear- 
ing, but  modifying  the  opinion  tlieretofore  rendered,  is  not 
a  judgment,  and  the  time  within  which  the  supreme  court 
might    order    a    transfer    of    the    case    runs    from    the    original 


Art.  VI,  §  4         CONSTITUTION  OF  1879.  216 

judgment.  (National  Bank  v.  Los  Angeles  etc.  Co.,  3  Cal. 
App.  G59,   84  Pac.   466.) 

The  supreme  court  has  no  authority  to  order  a  transfer  of  a 
cause  from  the  district  court  of  appeal  after  the  lapse  of 
sixty  daj's  from  the  giving  of  the  judgment  of  the  district 
court.  (National  Bank  v.  Los  Angeles,  2  Cal.  App.  659,  84  Pac. 
4C6;  People  v.  Ruef,  14  Cal.  App.  576,  114  Pac.  54.) 

In  cases  going  in  the  first  instance  to  the  court  of  appeal, 
a  rehearing  will  be  granted  by  the  supreme  court  only  when 
error  appears  upon  the  face  of  the  opinion  of  the  appellate 
court,  or  when  a  doubtful  and  important  question  is  presented 
upon  which  further  argument  is  desired  by  the  court.  (Burke 
V.  Maze,   10  Cal.  App.  206,  101  Pac.  438.) 

In  causes  referred  to  the  court  of  appeal  by  the  supreme 
court,  the  supreme  court,  in  passing  upon  an  application  for 
rehearing,  will  look  into  the  record  to  see  whether  anything 
deserving  consideration  has  been  overlooked  in  deciding  the 
cause,  or  any  of  the  facts  misconceived  in  material  particulars. 
(Burke  v.  Maze,  10  Cal.  App.  206,  101  Pao.  438.) 

A  justice  may  join  in  an  order  granting  a  rehearing  apart 
from  any  consultation  and  from  the  presence  of  his  associates. 
(People  v.  Ruef,  14  Cal.  App.  576,  114  Pac.  54.) 

The  court  may  exercise  the  power  to  grant  a  rehearing  with- 
out any  petition  or  application  therefor.  (People  v.  Ruef,  14 
Cal.  App.  576,  114  Pac.  54.) 

Admission  of  attorneys. — The  supreme  court  now  has  no  au- 
thority to  admit  attorneys  to  practice,  that  power  having  been 
conferred  by  the  legislature  upon  the  district  courts  of  appeal. 
(In  re  Mock,  146  Cal.  378,  80  Pac.  64.) 

Cases  at  law. — The  meaning  of  this  section  is  that  the 
supreme  court  shall  have  appellate  jurisdiction  in  all  cases 
at  law;  provided,  that  when  the  subject  of  litigation  is  capable 
of  pecuniary  compensation,  the  matter  in  dispute  must  exceed 
in  value  or  amount  the  sum  of  three  hundred  dollars,  unless 
a  question  of  the  legality  of  a  tax,  etc.,  is  drawn  in  question. 
(Conant  v.  Conant,  10  Cal.   249,  70  Am.  Dec.  717.) 

Therefore,  the  supreme  court  has  jurisdiction  of  a  case  where 
the  matter  in  dispute  is  incapable  of  pecuniary  estimation. 
(Conant  v.  Conant,  10  Cal.  249,  70  Am.  Dec.  717.) 

The  words  "matter  in  dispute"  mean  the  subject  of  litigation 
— the   matter   for   which   suit   is   brought — and   do   not   include 


217  CONSTITUTION  OF  1879.         Art.  VI,  §  4 

costs.  (Dumphy  v.  Guindon,  13  Cal.  28;  Maxfield  v.  Johnson, 
30  Cal.  545;  Zabriskie  v.  Torrey,  20  Cal.  173;  Votan  v.  Reese, 
20  Cal.  89;  Bolton  v.  Landers,  27  Cal.  lOG;  Henigan  v.  Ervin, 
110  Cal.  37,  42  Pac.  457.  Contra,  Gordon  v.  Ross,  2  Cal.  156, 
overruled.) 

But  where  the  supreme  court  obtains  jurisdiction  of  the 
appeal,  it  can  correct  the  costs  in  the  judgment.  (Votan  v. 
Reese,  20  Cal.  89.) 

Neither  is  percentage  allowed  by  statute  any  part  of  the 
matter  in  dispute.     (Zabriskie  v.  Torrey,  20  Cal.  173.) 

Under  the  former  constitution,  before  the  amendments  of 
18C2,  it  was  held  that  the  interest  due  forms  part  of  the 
matter  in  dispute.  (Skillman  v.  Lachman,  23  Cal.  198,  83  Am. 
Dec.  96;  Malson  v.  Vaughan,  23  Cal.  61.) 

But  under  the  amendment  of  1862  and  under  the  present 
constitution  the  demand  must  exceed  three  hundred  dollars 
•'exclusive  of  interest."     (Dashiell  v.  Slingerland,  60  Cal.  663.) 

In  cases  at  law,  when  the  demand  in  controversy,  exclusive 
of  interest,  is  less  than  three  hundred  dollars,  the  supreme 
court  has  no  jurisdiction.  (Sweet  v.  Tice,  45  Cal.  71;  Votan 
V.  Reese,  20  Cal.  89;  Maxfield  v.  Johnson,  30  Cal.  545;  Hopkins 
V.  Cheeseman,  28  Cal.  180.) 

The  words  "cases  at  law  ....  which  involve  ....  the 
legality  of  any  tax,"  etc.,  refer  to  civil,  as  distinguished  from 
criminal,   cases.     (People   v.   .Johnson,   30   Cal.    98.) 

The  record  must  affirmatively  show  that  the  case  involves 
the  constitutional  amount,  or  the  supreme  court  will  not  en- 
tertain jurisdiction.     (Doyle  v.  Seawall,  12  Cal.  280.) 

If  the  appeal  is  by  the  plaintiff  and  the  verdict  for  the  de- 
fendant, it  is  sufficient  if  the  amount  claimed  by  the  complaint 
exceeds  the  jurisdictional  amount.  (Votan  v.  Reese,  20  Cal. 
89;  Skillman  v.  Lachman,  23  Cal.  198,  83  Am.  Dec.  96.) 

The  ad  damnum  clause  of  the  complaint  is  the  test  of  juris- 
diction of  both  the  superior  and  supreme  courts,  and  if  the 
lower  court  had  jurisdiction,  the  supreme  court  also  has  juris- 
diction, whatever  the  amount  recovered,  and  whether  the 
appeal  be  taken  by  the  plaintiff  or  the  defendant.  (Solomon 
V.  Reese,  34  Cal.  28,  overruling  Votan  v.  Reese,  20  Cal.  89; 
Dashiell  v.  Slingerland,  60  Cal.  053;  Lord  v.  Goldberg,  81  Cal. 
596,  15  Am.  St.  Rep.  82,  22  Pac.  1126;  Henigan  v.  Ervin,  110 
Cal.  37,  42  Pac.  457.) 


Art.  VI,  §  4         CONSTITUTION  OF  1879.  218 

Where  the  plaintiff,  having  a  judgment  of  more  than  the 
jurisdictional  amount,  sought  to  have  a  judgment  against  him 
for  less  than  two  hundred  dollars  set  off  against  it,  the  su- 
preme court  has  no  jurisdiction  of  an  appeal  from  an  order 
den^'ing  the   motion.      (Crandall    v.   Blen,    15    Cal.   406.) 

The  fact  that  an  offset  is  pleaded  by  the  defendant  which, 
together  with  the  demand  of  the  plaintiff,  swells  the  amount 
to  more  than  the  jurisdictional  amount,  does  not  give  the  court 
jurisdiction.      (Simmons   v.    Brainard,    14   Cal.   278.) 

The  appellate  jurisdiction  of  the  supreme  court  extends  to  an 
appeal  from  a  judgment  of  a  superior  court  dismissing  a  writ 
of  certiorari,  and  af33rming  a  judgment  of  a  justice's  court, 
which  amounts  to  less  than  three  hundred  dollars.  (Heinlen 
V.  Phillips,  88  Cal.  557,  26  Pac.  366.  Bienenfeld  v.  Fresuo  etc. 
Co.,  82  Cal.  425,  22  Pac.  1113,  overruled.) 

The  supreme  court  has  no  jurisdiction  of  an  appeal  from  the 
superior  court  in  an  action  commenced  in  the  justice's  court 
under  section  1206  of  the  Civil  Code,  whether  the  action  be 
viewed  as  a  suit  in  equity  to  enforce  a  lieu  upon  personal  prop- 
erty, or  an  action  at  law  for  wages  due.  (Edsall  v.  Short,  122 
Cal.  533,  55  Pac.  327.) 

The  fact  that  the  defendant  in  an  action  in  a  justice's  court 
sets  up  a  counterclaim  in  excess  of  three  hundred  dollars  does 
not  give  the  supreme  court  jurisdiction  on  appeal.  (Maxfield 
V.  Johnson,  30  Cal.  545.) 

A  proceeding  in  the  nature  of  a  quo  warranto  to  try  the  title 
to  a  public  office,  where  the  court  can  impose  a  fine  of  five 
thousand  dollars,  is  a  case  at  law  in  which  the  demand  amounts 
to  three  hundred  dollars.  (People  v.  Perry,  79  Cal.  105,  21 
Pac.  423;  People  v.  Bingham,  82  Cal.  238,  22  Pac.  1039.  ) 

A  writ  of  error  will  not  lie  to  reverse  the  judgment  of  the 
superior  court  granting  a  nonsuit  on  appeal  from  a  judgment 
of  a  justice's  court.  (Pool  v.  Superior  Court,  2  Cal.  App.  533, 
84  Pac.  53.) 

No  appeal  lies  to  the  district  court  of  appeal  from  any  order 
or  judgment  of  the  superior  court  upon  appeal  from  a  justice's 
court.     (Pool  V.  Superior  Court,  2  Cal.  App.  533,  84  Pac.  53.) 

An  appeal  will  not  lie  to  the  court  of  appeals  from  an  order 
of  the  superior  court  dismissing  an  appeal  from  a  judgment 
of   a  justice's   court  in   an   action   at   law  involving   less   than 


219  CONSTITUTION  OF  1879.  Art.  VI.  §  4 

three  hundred  dollars.  (Willon  Land  Co.  v.  GokTsclimidt,  11 
Cal.  App.  297,  104  Pac.  841.) 

An  action  for  damages  exceeding  two  thousand  dollars  is 
■within  the  jurisdiction  of  the  supreme  court.  (Randall  v. 
Freed,  7  Cal.  App.  553,  94  Pac.  105G;  Wright  v.  Sonoma,  7  Cal. 
App.  567,  96  Pac.  333;  McAulay  v.  Tahoe  Ice  Co.,  3  Cal.  App. 
642,  86  Pac.  912.) 

SUITS  IN  EQUITY. — An  action  to  enforce  a  trust  is  a  suit 
in  equity.     (Marston  v.  Kuhland,  2  Cal.  App.  316,  84  Pac.  357.) 

A  suit  to  avoid  a  decree  of  foreclosure  taken  by  default  is 
within  the  equitable  jurisdiction  of  the  supreme  court.  (Litch 
V.  O'Connor,  8  Cal.  App.  489,  97  Pac.  207.) 

An  action  for  maintenance  is  a  suit  in  equity.  (Hiner  v. 
Iliner,  5  Cal.  App.  546,  90  Pac.  957.) 

A  suit  to  restrain  a  trespass  is  in  equity  and  within  the 
jurisdiction  of  the  supreme  court.  (Barnes  v.  Daveck,  7  Cal. 
App.  220,  94  Pac.  779.) 

Appellate  jurisdiction  of  all  cases  in  equity  is  given  to  the 
supreme  court.  (Eickey  Land  etc.  Co.  v,  Glader,  6  Cal.  App. 
113,  91  Pac.  414.) 

An  action  to  enjoin  the  diversion  of  water  is  a  suit  in  equity. 
(Rickey  Land  etc.  Co.  v.  Glader,  6  Cal.  App.  113,  91  Pac.  414.) 

A  suit  to  quiet  title  is  equitable  and  within  the  jurisdiction 
of  the  supreme  court.  (Davey  v.  Mulroy,  7  Cal.  App.  1,  93 
Pac.  297.) 

Under  the  general  equity  povrers  the  superior  court  has  power 
to  remedy  any  wrong  committed  by  election  boards.  (Cerini 
V.  De  Long,  7  Cal.  App.  398,  94  Pac.  582.) 

An  action  to  foreclose  a  mechanic's  lien  is  a  case  in  equity, 
although  the  liens,  by  order  of  the  court,  are  to  be  paid  out 
of  a  fund  deposited  in  court  by  the  owner  of  the  proi)erty. 
(Stockton  L.  Co.  v.  Scliuler,  7  Cal.  App.  257,  94  Pac.  399.) 

A  suit  to  foreclose  a  mortgage  is  within  the  equitable  juris- 
diction of  the  supreme  court.  (Aetna  Indemnity  Co.  v,  Alta- 
dena  Mining  etc.  Co.,  11  Cal.  App,  26,  104  Pac.  470.) 

Real  property. — Where  a  case  is  certified  to  the  superior 
court  from  the  justice's  court  on  the  ground  that  it  involves 
the  title  or  possession  of  real  property,  the  supreme  court  has 
jurisdiction  on  appeal,  although  no  question  is  raised  on  that 
subject  on  the  appeal.  (Baker  v.  Southern  Cal.  Ry.  Co.,  110 
Cal!  455,  42  Pac.  975.) 


Art.  VI,  §  4         CONSTITUTION  OF  1879.  220 

A  mere  statement  by  counsel  that  a  case  involves  the  title 
or  possession  of  real  property  is  not  sufficient  to  give  the 
supreme  court  jurisdiction.  (Raisch  v.  Sausalito  Land  etc.  Co., 
131   Cal.  215,  63  Pac.   346.) 

The  supreme  court  has  jurisdiction  of  an  action  for  the 
usurpation  of  a  franchise  for  a  toll  road,  since  the  right  to  the 
possession  of  real  projjerty  is  involved.  (People  v.  Horsley, 
65  Cal.  381,  4  Pac.  384.) 

The  supreme  court  has  jurisdiction  in  actions  for  damages 
to  real  property,  when  the  title  thereto  is  involved,  although 
the  damages  claimed  are  less  than  three  hundred  dollars. 
(Doherty  v.  Thayer,  31  Cal.  140.) 

The  district  courts  of  appeal  have  appellate  jurisdiction  in 
all  cases  specifically  mentioned  as  belonging  to  its  jurisdiction, 
although  they  may  incidentally  involve  the  title  to  or  pos- 
session of  real  estate,  or  the  legality  of  a  tax.  (Keech  v. 
Joplin,  157  Cal.  1,  106  Pac.  222.) 

Fines. — A  fine  imposed  by  a  county  court  for  wrongfully  de- 
manding and  collecting  toll  is  not  a  municipal  fine.  (People 
V.  Johnson,   30  Cal.   98.) 

On  the  trial  of  a  criminal  action  for  wrongfully  collecting 
toll,  the  legality  of  the  fine  to  be  imposed  in  case  of  a  con- 
viction is  not  involved.     (People  v.  Johnson,  30  Cal.  98.) 

The  word  assessment  as  used  in  the  clause  of  this  section 
conferring  appellate  jurisdiction  on  the  supreme  court  of  all 
cases  involving  "the  legality  of  any  ....  assessment,"  refers 
to  assessments  relating  to  public  taxation  or  to  raise  funds 
for  local  public  improvements.  (Bottle  Mining  and  Milling  Co. 
V.  Kern,  154  Cal.  96,  97  Pac.  25.) 

Special  cases. — The  supreme  court  has  jurisdiction  of  an 
appeal  from  an  order  discharging  an  insolvent.  (Fisk  v.  His 
Creditors,  12  Cal.  281.) 

An  arbitration  is  a  special  proceeding.  (Fairehild  v.  Doten, 
42  Cal.  125.) 

A  proceeding  to  condemn  land  for  the  use  of  a  railroad 
company  is  a  "special  case."  (Stockton  etc.  Co.  v.  Galgiani, 
49  Cal.  139.) 

A  contest  of  the  right  to  purchase  state  lands  is  a  special 
proceeding  within  the  jurisdiction  of  the  supreme  court. 
(Eisdon  v.  Prewett,  8  Cal.  App.  434,  97  Pac.  73.) 


221  CONSTITUTION  OF  1879.  Art.  VI,  §  4 

Special  orders. — The  supreme  court  has  appellate  jurisdiction 
of  all  special  orders  made  after  final  judgment  in  the  superior 
court,  without  reference  to  the  amount  involved.  (Southern 
Cal.  Ey.  Co.  v.  Superior  Court,  127  Cal.  417,  59  Pac.  789; 
Harron  v.  Harron,  123  Cal.  508,  56  Pac.  334.  Langan  v.  Lan- 
gan,  83  Cal.  618,  23  Pac.  1084,  and  Fairbanks  v.  Lampkin,  99 
Cal.  429,  34  Pac.   101,  overruled.) 

In  all  cases,  legal  or  equitable,  when  the  supreme  court  has 
appellate  jurisdiction  of  the  matter  brought  in  controversy  in 
the  lower  court,  the  appealability  of  an  order  made  before  or 
after  final  judgment  is  not  controlled  by  the  amount  involved 
in  such  order.  (Sierra  Union  etc.  Co.  v.  Wolff,  144  Cal.  430,  77 
Pac.  1038.) 

A  special  order  after  judgment,  refusing  to  strike  out  a 
cost-bill  in  the  superior  court  in  a  case  appealed  from  the 
justice's  court,  is  not  appealable  to  the  supreme  court,  although 
the  cost-bill  amounts  to  over  three  hundred  dollars.  (Henigan 
V.  Ervin,  110  Cal.  37,  42  Pac.  457.) 

An  order  for  twenty-five  dollars  each  month  alimony,  being 
a  continuing  order,  may  be  reviewed  upon  appeal.  (Langan 
V.  Langan,  86  Cal.  132,  24  Pac.  852.  See  Harron  v.  Harron, 
123   Cal.   508,  56  Pac.   334.) 

Criminal  cases. — The  supreme  court  has  jurisdiction  in  crim- 
inal cases  upon  questions  of  law  alone.  (People  v.  Logan, 
123  Cal.  414,  56  Pac.  56;  People  v.  Kuches,  120  Cal.  566,  52 
Pac.  1002;  People  v.  Smallman,  55  Cal.  185;  People  v.  Williams, 
133  Cal.  165,  65  Pac.  323.) 

The  propriety  of  a  conviction  on  the  evidence  becomes  a 
question  of  law  only  when  there  is  a  clear  failure  of  proof. 
(People  V.  Kuches,  120  Cal.  506,  52  Pac.  1002;  People  v. 
Smallman,  55  Cal.  185.) 

The  supreme  court  has  appellate  jurisdiction  of  all  misde- 
meanors prosecuted  by  indictment  or  information.  (People  v. 
.Jordan,  65  Cal.  644,  4  Pac.  683,  prescribing  a  method  for  taking 
such   appeals.) 

Under  the  former  constitution,  the  supreme  court  had  no 
jurisdiction  in  criminal  cases,  except  such  as  amount  to  felony. 
(People  v.  Apgar,  35  Cal.  389;  People  v.  .Johnson,  30  Cal.  98; 
People  V.  Shear,  7  Cal.  139;  People  v.  Vick,  7  Cal.  165;  People 
V.  Applegate,  5  Cal.  295.) 


Art.  VI,  §  4         CONSTITUTION  OF  1879.  222 

The  supremo  court  has  jurisdiction  of  an  appeal  from  a  judg- 
ment sustaining  a  demurrer  to  an  indictment  for  misconduct 
in  office.     (People   v.   Kalloch,   60   Cal.   113.) 

The  supreme  court  has  jurisdiction  of  an  appeal  in  a  crim- 
inal case,  although  the  lower  court  had  no  jurisdiction.  (Peo- 
ple V,  Pingree,  61  Cal.  141.) 

The  supreme  court  has  no  jurisdiction  of  an  appeal  from  a 
judgment  of  a  superior  court,  affirming  a  judgment  of  the 
police  court,  adjudging  a  defendant  guilty  of  a  misdemeanor, 
and  imposing  a  fine  of  fifty  dollars,  it  not  being  "a  criminal 
case  prosecuted  by  indictment  or  information  in  a  court  of 
record."     (People  v.  Meiggs'  Wharf  Co.,  6.5  Cal.  99,  3  Pac.  491.) 

Under  the  former  constitution  the  jurisdiction  of  the  supreme 
court  in  criminal  cases  on  defendant's  appeal  was  not  to  be 
determined  by  the  offense  charged,  but  by  the  offense  of  which 
the  defendant  was  convicted.     (People  v.  Apgar,  35  Cal.  389.) 

The  "information"  referred  to  is  that  named  in  section  8, 
article  1,  of  the  constitution.  (Larue  v.  Davies,  8  Cal.  App. 
750,  97  Pac.  903.) 

A  proceeding  to  remove  an  officer  summarily  for  misde- 
meanor in  office  by  accusation,  not  being  presented  by  indict- 
ment or  information,  is  not  within  the  appellate  jurisdiction 
of  the  supreme  court  or  the  court  of  appeals.  (Larue  v.  Davies, 
8  Cal.  App.  750,  97  Pac.  903,  arguendo.) 

When  there  is  only  evidence  to  support  the  verdict  in  a 
criminal  case,  the  appellate  court  has  no  jurisdiction  to  disturb 
it.     (People  V.  Meyers,  5  Cal.  App.  674,  91  Pac.  167.) 

The  propriety  of  a  conviction  becomes  a  question  of  law 
only  when  there  is  a  clear  failure  of  proof.  (People  v.  Caul' 
field,  7  Cal.  App.  656,  95  Pac.  666.) 

Probate. — The  supreme  court  has  jurisdiction  of  only  such 
appeals  in  probate  matters  as  are  provided  by  law.  (Estate 
of  Walkerly,  94  Cal.  352,  29  Pac.  719;  Estate  of  Ohm,  82  Cal. 
160,  22  Pac.  927;  Estate  of  Moore,  86  Cal.  58,  24  Pac.  816; 
Estate  of  Winslow,  128  Cal.  311,  60  Pac.  931;  Estate  of  Witt- 
meier,  118  Cal.  255,  50  Pac.  393;  Estate  of  Cahill,  142  Cal. 
628,  76  Pac.  383.) 

An  order  compelling  an  administratrix  to  allow  her  name 
to  be  used  by  a  creditor  of  the  estate  is  a  probate  matter 
within    the   meaning    of    this    section,    and,    not    being    one    in 


223      •  CONSTITUTION  OF  1879.  Art.  VI,  §  4 

which  an  appeal   is  provided  by  law,  no   appeal  lies.     (Estate 
of  Ohm,  82  Cal.  160,  22  Pac.  927.) 

Divorce. — An  action  for  divorce  is  a  case  in  equity  within 
the  meaning  of  this  section.  (Sharon  v.  Sharon,  67  Cal.  1S5, 
7  Pac.  456,  8  Pac.  709;  Cassidy  v.  Sullivan,  64  Cal.  2G6,  28  Pac. 
234;  Stewart  v.  Torrance,  9  Cal.  App.  209,  98  Pac.  396.) 

The  supreme  court  has  jurisdiction  of  an  appeal  in  an  action 
for  divorce.     (Conant  v.  Conant,  10  Cal.  249,  70  Am.  Dec.  717.) 

Liens. — Under  the  former  constitution,  prior  to  the  amend- 
ments of  1862,  the  supreme  court  had  no  jurisdiction  of  an 
action  to  foreclose  a  mortgage  or  mechanic's  lien  when  the 
amount  involved  did  not  exceed  two  hundred  dollars.  (Poland 
V.  Carrigan,  20  Cal.  174.)  Otherwise,  since  those  amendments. 
(Willis  V.  Farley,  24  Cal.  490,  499.) 

An  action  to  foreclose  a  mechanic's  lien  or  to  reach  the 
fund  in  the  hands  of  the  owner,  being  an  equitable  action,  is 
within  the  appellate  jurisdiction  of  the  supreme  court.  (Wel- 
don  V.  Superior  Court,  138  Cal.  427,  71  Pac.  502.) 

Writs. — The  language  of  the  present  constitution  giving  the 
supreme  court  power  to  "issue  writs  of  mandamus,  certiorari, 
prohibition,  and  habeas  corpus,  and  all  other  writs  necessary 
or  proper  to  the  complete  exercise  of  the  appellate  jurisdiction," 
has  the  same  meaning  as  the  language  in  the  former  constitu- 
tion giving  it  power  to  "issue  writs  of  mandamus,  certiorari, 
prohibition,  halacas  corpus,  and  also  all  writs  necessary  or 
proper  to  the  complete  exercise  of  its  appellate  jurisdiction." 
Thus  construed,  the  section  gives  the  court  original  jurisdiction 
to  issue  the  writs  specially  named.  (Hyatt  v.  Allen,  54  Cal. 
353.) 

The  writ  of  prohibition  mentioned  in  this  section  is  the 
writ  of  prohibition  as  known  to  the  common  law,  and  its  office 
is  to  restrain  subordinate  courts  and  inferior  judicial  tribunals 
from  exceeding  their  jurisdiction.  (Maurer  v.  Mitchell,  53  Cal. 
289.) 

The  legislature  cannot  enlarge  or  extend  the  office  of  the 
writs  mentioned  in  this  section.  (Camron  v.  Kenfield,  57  Cal. 
550;  Farmers'  Union  v.  Thresher,  62  Cal.  407;  Hobart  v.  Till- 
Bon,  66  Cal.  210,  5  Pac.  83.) 

In  issuing  writs  of  mandamus  or  other  prerogative  writs,  the 
supreme  court  and  the  several  superior  courts  are  peers — each 


Art.  VI,  §  4         CONSTITUTION  OF  1879.  224 

having  original  jurisdiction;  and  a  determination  tliereon  by 
a  superior  court  is  conclusive  upon  the  supreme  court,  except 
on  appeal.     (Santa  Cruz  etc.  Co.  v.  Santa  Clara,  62  Cal.  40.) 

The  supreme  court  will  not  entertain  an  application  for  a 
writ  of  mandamus,  or  other  prerogative  writ,  where  the  peti- 
tion shows  no  sufficient  reason  why  the  application  was  not 
made  to  the  superior  court.  (Menzies  v.  Board  of  Equaliza- 
tion, 62  Cal.  179.) 

The  supreme  court  has  appellate  jurisdiction  in  cases  of 
mandamus.     (Palache  v.  Hunt,  64  Cal.  473,  2  Pac.  245.) 

The  supreme  court  has  appellate  jurisdiction  in  a  proceeding 
in  the  nature  of  a  quo  warranto.  (People  v.  Perry,  79  Cal.  103, 
21  Pac.  423.) 

The  supreme  court  may  exercise  its  appellate  jurisdiction  by 
means  of  the  writs  mentioned  in  this  section.  (People  v. 
Turner,  1  Cal.  143,  52  Am.  Dec.  295.) 

Mandamus  is  the  proper  remedy  to  compel  the  district  court 
to  restore  an  attorney  whose  name  has  been  stricken  from 
the  rolls  by  the  order  of  such  court.  (People  v.  Turner,  1  Cal. 
143,  52  Am.  Dec.  295.) 

Prior  to  the  amendment  of  1862,  the  supreme  court  could 
issue  writs  of  certiorari,  etc.,  only  in  aid  of  its  appellate  juris- 
diction. (Miliken  v.  Iluber,  21  Cal.  166;  Ex  parte  Attorney 
General,  1  Cal.  85.) 

Under  the  amendment  of  1862,  the  supreme  court  had  juris- 
diction to  issue  writs  of  mandamus,  etc.,  without  reference  to 
its  appellate  jurisdiction.  (Tyler  v.  Houghton,  25  Cal.  26; 
Miller  v.  Supervisors,  25  Cal.  93.) 

The  district  courts  had  jurisdiction  to  issue  writs  of  man- 
date regardless  of  the  amount  involved.  (Cariaga  v.  Dryden, 
30   Cal.  244.) 

The  jurisdiction  of  the  supreme  court  in  cases  of  certiorari 
does  not  depend  upon  the  amount  in  controversy.  (Winter  v. 
Fitzpatrick,  35  Cal.  269.) 

The  writ  of  certiorari  can  be  rightfully  issued  only  upon  an 
order  of  the  court,  made  upon  application  for  that  purpose, 
and  not  upon  an  order  of  the  justices  of  the  court  as  such, 
or  any  of  them.     (Smith  v.  Oakland,  49  Cal.  491.) 

A  mandamus  proceeding  involving  the  validity  of  the  organ- 
ization of  a  protection  district  and  a  tax  thereof  is  within  the 


225  CONSTITUTION  OF  1879.  Art.  VI,  §  4 

jurisdiction    of   the    supreme    court.     (Kcoch    v.    Joplin,    9    Cal. 
App.  217,  101  Pac.  417.) 

When  mandamus  is  sought  in  aid  of  the  exercise  of  appellate 
jurisdiction,  as  to  compel  the  settlement  of  a  bill  of  excep- 
tions, the  application  must  be  addressed  to  the  court  having 
appellate  jurisdiction  of  the  cause.  (Stewart  v.  Torrance,  9 
Cal.  App.  209,  98  Pac.  396.) 

The  constitution  does  not  confine  the  jurisdiction  of  district 
courts  to  issue  writs  of  mandamus  within  their  respective  dis- 
tricts, but,  as  a  matter  of  comity,  such  writs  should  be  in- 
variably applied  for  to  the  court  of  the  district  in  which  the 
cause  for  the  writ  arises,  unless  there  are  shown  special  cir- 
cumstances which  justify  the  issuance  of  the  writ  by  the  court 
of  another  district.  (Older  v.  Superior  Court,  10  Cal.  App.  564, 
102  Pac.  829.) 

It  is  a  sufficient  ground  for  presenting  a  petition  for  writ 
of  mandate  to  the  district  court  of  a  district  outside  of  which 
the  cause  for  the  writ  arose  that  it  would  be  impracticable  to 
present  it  to  the  other  court  on  account  of  liiss  of  time.  (Older 
V.  Superior  Court,  10  Cal.  App.  564,  102  Pac.  829.) 

Power  of  district  court  of  appeals  to  issue  writs  in  cases 
appealable  to  district  court  of  appeals  of  another  district  dis- 
cussed but  not  decided.  (Older  v.  Superior  Court,  157  Cal.  770, 
109  Pac.  478.) 

Miscellaneous. — The  supreme  court  has  no  jurisdiction  of  an 
appeal  from  a  judgment  in  a  proceeding  under  section  772  of 
the  Penal  Code,  for  the  removal  of  public  officers.  (In  re 
Curtis,  108  Cal.  661,  41  Pac.  793;  Wheeler  v.  Donnell,  110  Cal. 
655,  43  Pac.   1.) 

The  supreme  court  has  appellate  jurisdiction  of  an  appeal 
in  a  civil  proceeding  to  remove  an  officer.  (Morton  v.  I3rod 
erick,  118  Cal.  474,  50  Pac.  614.) 

The  supreme  court  has  no  original  jurisdiction  to  try  the 
title  to  an  office,     (People  v.  Harvey,  62  Cal.  508.) 

The  supreme  court  has  appellate  jurisdiction  of  an  election 
contest.     (Lord  v.   Dunster,   79   Cal.   477,   21  I'ac.   865.) 

The   supreme   court   has   no  jurisdiction   to  naturalize   aliens. 
(Ex  parte  Knowles,  5   Cal,  300.) 
Constitution — 15 


Art.  VI,  §  4         CONSTITUTION  OF  1879.  226 

The  supreme  court  has  no  jurisdiction  of  an  appeal  frum  a 
judgmput  of  the  district  court  upon  appeal  from  the  court 
of  sessions.     (Webb  v.  Hanson,  3  Gal.  65.) 

FAILURE  TO  AGEEE.— When  the  judges  of  the  district 
court  of  appeal  fail  to  agree  upon  an  application  for  a  writ  of 
mandate  it  is  deemed  denied.  (Ex  parte  Sauer,  3  Cal.  App. 
237,  84  Pac.  995.) 

PRESIDING  JUSTICE.— The  functions  conferred  on  the 
chief  justice  by  section  1174  of  the  Penal  Code  are  to  be  per- 
formed by  the  presiding  justices  of  the  district  courts  of 
appeal,  in  cases  in  which  appeals  must  be  taken  to  such 
courts.     (People  v.  Lapique,  154  Cal.  518,  98  Pac.  257.) 

REMITTITUR. — The  remittitur  is  the  judgment  of  the  appel- 
late tribunal  which  is  authenticated  to  the  court  from  which 
the  appeal  is  taken  or  over  which  its  controlling  influence  is 
exercised,  and  applies  to  all  judgments,  whether  rendered  in 
the  exercise  of  appellate  or  original  jurisdiction.  (Noel  v. 
Smith,  2  Cal.  App.  158,  83  Pac.  167.) 

Under  rule  34  of  the  supreme  court  a  judgment  of  the 
district  court  of  appeal  does  not  become  conclusive  until  the 
remittitur  is  issued  thereon.  (Noel  v.  Smith,  2  Cal.  App.  158, 
83  Pac.   167.) 

APPEAL  TO  WRONG  COURT.— Where  an  appeal  is  errone- 
ously taken  to  the  court  of  appeal  instead  of  the  supreme 
court,  the  case  will  be  transferred  to  the  latter  court.  (Marston 
V.  Kuhland,  2  Cal.  App.  316,  84  Pac.  357;  Hiner  v.  Hincr,  5 
Cal.  App.  546,  90  Pac.  957;  Eickej^  Land  etc.  Co.  v.  Glader, 
6  Cal.  App.  113,  91  Pac.  414;  Barnes  v.  Daveck,  7  Cal.  App. 
220,  94  Pac.  779;  Stockton  L.  Co.  v.  Sehuler,  7  Cal.  App.  257. 
94  Pac.  399;  Randall  v.  Freed,  7  Cal.  App.  553,  94  Pac.  1056; 
Wright  V.  Sonoma,  7  Cal.  App.  567,  96  Pac.  333;  Aetna  In- 
demnity Co.  V.  Altadena  Mining  etc.  Co.,  11  Cal.  App.  26,  104 
Pac.  470;  Pacific  Paving  Co.  v.  Verso,  11  Cal.  App.  383,  105 
Pac.  136;  Risdon  v.  Prewett,  8  Cal.  App.  434,  97  Pac.  73; 
Litch  V.  O'Connor,  8  Cal.  App.  489,  97  Pac.  207;  Keech  v. 
Joplin,   9   Cal.   App.   217,   ivi   Pac.   417.) 

When  an  appeal  is  taken  to  the  supreme  court,  but  the 
undertaking  recites  an  appeal  to  the  district  court  of  appeal, 
it  is  ineffectual.  (McAulay  v.  Tahoe  Ice  Co.,  3  Cal.  App.  642, 
86  Pac.  912.) 


Art.  VI,  Sec.  41/2.     Insert  at  Page  227. 

Sec.  4I/0.  No  judgment  shall  be  set  aside,  or  new 
trial  granted,  in  any  case,  on  the  ground  of  mis- 
direction of  the  .jury,  or  of  the  improper  admission 
or  rejection  of  evidence,  or  for  any  error  as  to  any 
matter  of  pleading,  or  for  any  error  as  to  any  matter 
of  procedure,  unless,  after  an  examination  of  the 
entire  cause,  including  the  evidence,  the  court  shall  be 
of  the  opinion  that  the  error  complained  of  has  re- 
sulted in  a  miscarriage  of  justice.  (Amendment 
adopted  November  -3,   ]914.) 


227  CONSTITUTION  OF  1879.     Art.  VI,  §§  4:1/2,  5 

When  an  appeal  is  properly  taken  to  the  supreme  court, 
but  the  transcript  and  briefs  are  entitled  in  the  district  court 
of  appeal,  the  latter  court  will  not  dismiss  the  appeal,  but  will 
order  the  record  transmitted  to  the  supreme  court.  (Davey 
V.  Mulroy,  7  Cal.  App.  1,  93  Pac.  297.) 

An  appeal  bond  erroneously  reciting  that  the  appeal  was 
about  to  be  taken  to  the  supreme  court  instead  of  the  court 
of  appeal  may  be  cured  by  a  new  bond.  (Pacific  Paving  Co. 
V.  Verso,  11  Cal.  App.  383,  105  Pac.  136.) 

Harmless  errors  to  be  disregarded. 

Sec.  41/2.  No  judgment  shall  be  set  aside,  or  new 
tri  1  granted  in  any  criminal  case  on  the  ground  of 
misdirection  of  the  jury  or  the  improper  admission  or 
rejection  of  evidence,  or  for  error  as  to  any  matter  of 
pleading  or  procedure,  unless,  after  an  examination 
of  the  entire  cause  including  the  evidence,  the  court 
shall  be  of  the  opinion  that  the  error  complained  of 
has  resulted  in  a  miscarriage  of  justice.  (Amendment 
approved  October  10,  1911.) 

Superior  court,  jurisdiction. 

Sec.  5.  The  superior  court  shall  have  original  juris- 
diction in  all  cases  in  equity,  and  in  all  cases  at  law 
which  involve  the  title  or  possession  of  real  property, 
or  the  legality  of  any  tax,  impost,  assessment,  toll,  or 
municipal  fine,  and  in  all  other  eases  in  whicli  the  de- 
mand, exclusive  of  interest  or  tlie  value  of  the  prop- 
erty in  controversy  amounts  to  three  hundred  dollars, 
and  in  all  criminal  cases  amounting  to  felony,  and 
cases  of  misdemeanor  not  otherwise  provided  for;  of 


Art.  VI,  §  5         CONSTITUTION  OF  1879.  228 

actions  of  forcible  entry  and  detainer;  of  proceedings 
in  insolvency;  of  actions  to  prevent  or  abate  a  nni- 
sance ;  of  all  matters  of  probate ;  of  divorce  and  for 
annulment  of  marriage ;  and  of  all  such  special  cases 
and  proceedings  as  are  not  otherwise  provided  for, 
and  said  courts  shall  have  the  power  of  naturalization, 
and  to  issue  papers  therefor.  They  shall  have  appel- 
late jurisdiction  in  such  cases  arising  in  inferior  courts 
in  their  respective  counties  as  may  be  prescribed  by 
law.  They  shall  be  always  open  (legal  holidays  and 
nonjudicial  daj^s  excepted),  and  their  process  shall  ex- 
tend to  all  parts  of  the  state ;  provided,  that  all  actions 
for  the  recovery  of  the  possession  of,  quieting  the  title 
to,  or  for  the  enforcement  of  liens  upon  real  estate, 
shall  be  commenced  in  the  county  in  which  the  real 
estate,  or  any  part  thereof,  affected  by  such  action  or 
actions,  is  situated.  Said  courts,  and  their  judges, 
shall  have  power  to  issue  writs  of  mandamus,  certi- 
orari, prohibition,  quo  warranto,  and  habeas  corpus, 
on  petition  by  or  on  behalf  of  any  person  in  actual 
custody,  in  their  respective  counties.  Injunctions  and 
writs  of  prohibition  may  be  issued  and  served  on  legal 
holidays  and  nonjudicial  days.  (Amendment  approved 
October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  5.     The   superior   court   shall   have   original   jurisdiction 
in  all  cases  in  equity,  and  in  all  cases  at  law  which  involve  the 
title  or  possession  of  real  property,  or  the  legality  of  any  tax, 


229  CONSTITUTION  OF  1879.         Art.  VI,  §  5 

impost,  assessment,  toll,  or  municijial  fine,  and  in  all  other  cases 
in  which  the  demand,  exclusive  of  interest  or  the  value  of  the 
property  in  controversy,  amounts  to  three  hundred  dollars,  and 
in  all  criminal  eases  amounting  to  felony,  and  cases  of  misde- 
meanor not  otherwise  provided  for;  of  actions  of  forcible  entry 
and  detainer;  of  proceedings  in  insolvency;  of  actions  to  pre- 
vent or  abate  a  nuisance;  of  all  matters  of  probate;  of  divorce 
and  for  annulment  of  marriage,  and  of  all  such  special  cases  and 
proceedings  as  are  not  otherwise  provided  for.  And  said  court 
shall  have  the  power  of  naturalization,  and  to  issue  papers  there- 
for. They  shall  have  appellate  jurisdiction  in  such  cases  arising 
in  justices'  and  other  inferior  courts  in  their  respective  counties 
as  may  be  prescribed  by  law.  They  shall  be  always  open  (legal 
holidays  and  nonjudicial  days  excepted),  and  their  process  shall 
extend  to  all  parts  of  the  state;  provided,  that  all  actions  for  the 
recovery  of  the  possession  of,  quieting  the  title  to,  or  for  the 
enforcement  of  liens  upon  real  estate,  shall  be  commenced  in 
the  county  in  which  the  real  estate,  or  any  part  thereof  affected 
by  such  action  or  actions,  is  situated.  Said  courts,  and  their 
judges,  shall  have  power  to  issue  writs  of  mandamus,  certiorari, 
prohibition,  quo  warranto,  and  habeas  corpus,  on  petition  by  or 
on  behalf  of  any  person  in  actual  custody  in  their  respective 
counties.  Injunctions  and  writs  of  prohibition  may  be  issued 
and  served  on  legal  holidays  and  nonjudicial  days. 

JURISDICTION  OF  SUPERIOR  COURT— In  general.— The 
superior  court  is  a  court  of  general  jurisdiction.  (Bishop 
V.  Superior  Court,  87  Cal.  226,  25  Pac.  435;  Campe  v.  Lassen, 
67  Cal.  139,  7  Pac.  430.) 

Its  jurisdiction  is  conferred  by  the  constitution,  and  cannot 
be  taken  away  by  the  legislature.  (Tulare  v.  Hevren,  126 
Cal.  226,  58  Pac.  530.) 

The  superior  courts  are  state  courts.  (Pratt  v.  Browne,  135 
Cal.  649,  67  Pac.   1082.) 

There  is  only  one  superior  court  in  each  county.  (Carter  v. 
Lothian,  133  Cal.  451,  65   Pac.  962.) 


Art.  VI,  §  5  CONSTITUTION  OF  1879.  230 

This  section  was  intended  to  be  prospective  only  in  its  oper- 
ation, and  does  not  apply  to  actions  pending  wlien  the  constitu- 
tion went  into  effect.  (Gurnee  v.  Sujierior  Court,  58  Cal.  88; 
Watt  V.  Wright,  66  Cal.  202,  5  Pac.  91.) 

This  section  does  not  prohibit  the  legislature  from  allowing 
judicial  business  to  be  transacted  on  a  legal  holiday  or  non- 
judicial day.     (People  v.  Soto,  65  Cal.  621,  4  Pac.  664.) 

The  fact  that  the  constitution  gives  the  superior  court  juris- 
diction in  cases  of  equity  does  not  prevent  the  legislature  from 
regulating  the  practice  of  proceedtngs  in  such  cases.  (Wright 
V.  Superior  Court,  139  Cal.  469,  73  Pac.  145.) 

A  superior  court  is  always  in  session.  (County  of  San  Luia 
Obispo  V.  Limas,  1  Cal.  App.  175,  81  Pac.  972.) 

As  to  jurisdiction  in  general,  see  note  to  last  section. 

HOLIDAYS. — There  is  an  apparent  conflict  between  this 
provision  and  section  134  of  the  Civil  Code  so  far  as  holidays 
are  concerned.  (People  v.  Heacock,  10  Cal.  App.  450,  102 
Pac.   543.) 

As  to  whether  Saturday  afternoon  is  a  legal  holiday  so  far 
as  judicial  business  is  concerned,  see  People  v.  Heacock,  10 
Cal.   App.  450,   102  Pac.  543. 

This  section  does  not  forbid  the  legislature  from  permitting 
the  transaction  of  business  on  legal  holidays.  (People  v. 
Heacock,  10  Cal.  App.  450,  102  Pac.  543.) 

By  this  section  it  was  never  intended  to  prohibit  all  busi- 
ness in  the  superior  courts  on  a  legal  holiday  or  nonjudicial 
day,  except  the  issuance  of  injunctions  and  writs  of  prohibition, 
and  the  legislature  is  at  liberty  to  allow  or  disallow  the 
transaction  of  all  or  any  class  of  judicial  business  on  legal 
holidays.  (Matter  of  Smith,  152  Cal.  566,  93  Pac.  191;  Diepen- 
brock  V.  Superior  Court,  153  Cal.  597,  95  Pac.  1121.) 

Cases  at  law. — The  ad  damnum  clause  of  the  complaint  de- 
termines the  jurisdiction  of  the  superior  court.  (Dashiell  v. 
Slingerland,  60  Cal.  653;  Jackson  v.  Whartcnby,  5  Cal.  94; 
Maxfield  v.  Johnson,  30  Cal.  545;  Greenbaum  v.  Martinez,  86 
Cal.  459,  25  Pac.  12;  Bailev  v.  Sloan,  65  Cal.  387,  4  Pac.  349; 
Derby  v.  Stevens,  64  Cal.  ^287,  30  Pac.  820;  Rodley  v.  Curry, 
120  Cal.  541,  52  Pac.  999;  Tulare  v.  Hevren,  126  Cal.  226,  58 
Pac.  530.) 

The  "demand"  spoken  of  in  this  section  is  a  demand  for 
judgment  evidenced  by  the  prayer  of  the  complaint,  and  a  statj- 


231  CONSTITUTION  OF  1879.         Art.  VI,  §  5 

nient  of  facts  wliicli  can  uphold  the  judgment  prayed  for. 
(Derby  v.  Stevens,   64  Cal.   287,  30   Pac.   S20,  arg^uendo.) 

It  is  the  demand  and  not  the  finding  of  value  which  fixes 
the  jurisdiction  of  the  court.  (Pratt  v.  Welcome,  6  Cal.  App. 
475,  92  Pac.  500.) 

The  jurisdiction  of  the  court  is  not  atfected  by  the  fact  that 
the  plaintiff  does  not  succeed  in  establishing  all  that  he  claims. 
(Becker  v.  Superior  Court,  151  Cal.  313,  90  Pac.  689.) 

The  jurisdiction  depends  upon  the  amount  demanded  in  good 
faith  in  the  complaint.  (Jackson  v.  Whartenby,  5  Cal.  94, 
arguendo.) 

In  an  action  for  conversion,  where  the  value  of  the  property 
sued  for  and  the  money  expended  in  pursuit  of  it  exceed  three 
hundred  dollars,  the  superior  court  has  jurisdiction,  although, 
separately  considered,  neither  of  them  is  equal  to  that  sum. 
(Greenbaum  v.  Martinez,  86  Cal.  459,  25  Pac.  12.) 

The  superior  court  has  no  jurisdiction  of  a  counterclaim, 
under  subdivision  2  of  section  438  of  the  Code  of  Civil  Pro- 
cedure, for  less  than  three  hundred  dollars,  where  it  is  not 
pleaded  as  a  defense,  but  merely  as  a  ground  for  aflSrmative 
relief.     (Griswold  v.  Pieratt,  110  Cal.  259,  42  Pac.  820.) 

A  counterclaim  for  less  than  three  hundred  dollars  may  be 
pleaded  in  an  action  in  the  superior  court  by  way  of  defense, 
but  no  affirmative  judgment  can  be  rendered  thereon.  (Free- 
man v.  Seitz,  126  Cal.  291,  58  Pac.  690.) 

An  action  for  less  than  the  constitutional  amount  does  not 
confer  jurisdiction.      (Page  v.  Ellis,  9  Cal.  248.) 

But  where  the  amount  sued  for  exceeds  the  jurisdictional 
amount,  the  court  has  jurisdiction,  although  the  amount  recov- 
ered is  less  than  that  sum.  (Solomon  v.  Eeese,  34  Cal.  28; 
Pennybecker  v.  McDougal,  48  Cal.  160.) 

Where  several  plaintiffs  sue  together  on  several  distinct 
claims  each  for  less  than  three  hundred  dollars,  and  the  court 
enters  a  joint  judgment  for  the  entire  amount  of  the  claims, 
the  judgment  is  void.  (Winrod  v.  Wolters,  141  Cal.  399,  74 
Pac.  1037.) 

Costs  are  to  be  excluded  in  determining  the  jurisdictional 
amount.      (Bradley  v.  Kent,  22  Cal.  169.) 

The  interest  due  is  also  to  be  excluded.  (Arnold  v.  Van 
Brunt,  4  Cal.  89.) 


Art.  VI,  §  5         CONSTITUTION  OF  1879.  232 

This  rule  applies  to  compound  as  well  as  to  simple  interest. 
(Christian  v.  Superior  Court,  122  Cal.  117,  54  Pae.  518.) 

But  a  penalty  of  fifty  per  cent  on  the  amount  of  principal 
and  interest  due  on  a  promissory  note,  provided  for  in  the  note 
in  case  of  a  suit  thereon,  is  to  be  included  in  determining  the 
jurisdictional  amount.     (Reed  v.  Bornal,  40  Cal.  628.) 

Also  an  attorney's  fee  provided  for  in  a  note.  (De  Jarnatt  v. 
Marquez,  132  Cal.  700,  64  Pac.  1090.) 

An  action  to  recover  funds  in  the  hands  of  a  receiver  is  an 
action  at  law.  (Garniss  v.  Superior  Court,  88  Cal.  413,  26  Pac. 
351.) 

The  superior  court  has  jurisdiction  of  an  action  to  recover 
money,  although  the  amount  claimed  in  each  count  is  less  than 
three  hundred  dollars,  when  the  aggregate  amount  sued  for  ex- 
ceeds that  sum.  (Bailey  v.  Sloan,  65  Cal.  387,  4  Pac.  349; 
Ventura  County  v.  Clay,  114  Cal.  242,  46  Pac.  9.) 

The  superior  court  has  jurisdiction  to  enjoin  an  action  in  the 
justice's  court  for  the  price  of  goods  sold,  when  the  defendant 
has  a  counterclaim  for  breach  of  warranty  of  the  goods  in 
excess  of  the  jurisdiction  of  the  justice's  court,  and  has  brought 
an  action  for  damages  in  the  superior  court.  (Gregory  v. 
Diggs,  113  Cal.  196,  45  Pac.  261.) 

The  superior  court  has  no  jurisdiction  of  an  action  to  recover 
from  one  or  more  stockholders  their  several  shares  of  a  debt 
of  a  corporation,  where  the  amount  demanded  from  each  is 
less  than  three  hundred  dollars,  although  the  entire  amount  ex- 
ceeds that  sum.  (Derby  v.  Stevens,  64  Cal.  287,  30  Pac.  820; 
Hyman  v.  Coleman,  82  Cal.  650,  16  Am.  St.  Eep.  178,  23  Pac. 
62.) 

The  superior  court  has  no  jurisdiction  of  an  action  upon  sepa- 
rate and  distinct  promises  of  several  defendants,  contained  in 
one  instrument,  to  pay  respectively  sums  less  than  three  hun- 
dred dollars.     (Thomas  v.  Anderson,  58  Cal.  99.) 

An  action  to  recover  unpaid  taxes  is  not  a  case  in  equity,  but 
an  action  at  law;  and  where  the  amount  is  less  than  three  hun- 
dred dollars,  the  court  has  no  jurisdiction;  but  an  action  to 
foreclose  a  lien  for  taxes  is  a  case  in  equity,  of  which  the  su- 
perior court  has  jurisdiction  regardless  of  the  amount.  (People 
V.  Mier,  24  Cal.  61;  Bell  v.  Crippen,  28  Cal.  327;  People  v. 
Olivera,  43  Cal.  492.) 


233  CONSTITUTION  OF  1879.  Art.  VI,  §  5 

Cases  in  equity. — The  legislature  cannot  take  away  the  equity 
jurisdiction  conferred  by  the  constitution.  (Rosenberg  v. 
Frank,  58  Cal.  387.) 

But  the  constitutional  grant  of  jurisdiction  in  all  cases  in 
equity  was  not  intended  as  a  limitation  upon  the  power  of  the 
legislature  to  regulate  the  rights  of  persons;  and  the  legislature 
may  create  new  rights  under  which  new  cases  in  equity  may 
arise,  or  cause  some  rights  to  cease  to  exist,  so  that  certain 
cases  which  courts  of  equity  once  entertained  can  no  longer 
arise.  (Spreckels  v.  Hawaiian  Com.  etc.  Co.,  117  Cal.  377,  49 
Pac.  353.) 

The  grant  of  jurisdiction  in  all  cases  in  equity  confers  the 
same  jurisdiction  as  that  formerly  exercised  by  a  court  of 
chancery.     (Sanford  v.  Head,  5  Cal.  297.) 

The  superior  court  has  jurisdiction  of  an  action  for  an  ac- 
counting between  mortgagor  and  mortgagee,  although  the  prop- 
erty is  out  of  the  state.  (Peninsular  etc.  Co.  v.  Pacific  etc.  Co., 
123  Cal.  689,  56  Pac.  604.) 

Where  an  action  in  equity  involves  matters  of  probate  juris- 
diction, but  no  objection  to  the  mode  of  exercising  the  juris- 
diction is  made  in  the  trial  court,  it  will  be  treated  upon  appeal 
as  within  the  equity  jurisdiction.  (Simons  v.  Bedell,  122  Cal. 
341,  68  Am.  St.  Rep.  35,  55  Pac.  3.) 

An  action  against  a  county  for  less  than  three  hundred  dol- 
lars, claimed  as  compensation  for  services  rendered  by  the  plain- 
tiff as  a  member  of  the  county  board  of  education,  is  not  a  suit 
in  equity,  and  the  superior  court  has  no  jurisdiction  of  it. 
(Wright  V.  Del  Norte  County,  115  Cal.  464,  47  Pac.  258.) 

The  same  superior  court  has  jurisdiction  both  in  equity  and 
in  matters  of  probate;  and  in  an  action  in  equity  for  an  ac- 
counting against  the  executor  of  a  deceased  administrator,  it 
may  administer  full  and  entire  relief  according  to  the  prin- 
ciples of  equity,  and  also  in  accordance  with  the  statutes  with 
reference  to  matters  of  probate.  (Pennie  v.  Roach,  94  Cal.  515, 
29  Pac.  95G,  30  Pac.  106.) 

A  court  of  equity  has  jurisdiction  of  an  action  to  recover 
property  intentionally  and  fraudulently  concealed  by  a  guardian 
from  the  court  and  the  ward.  (Lataillade  v.  Orena,  91  Cal.  565, 
25  Am.  St.  Rep.  219,  27  Pac.  924.) 


Art.  VI,  §  5  CONSTITUTION  OF  1879.  231 

The  superior  court  cannot  enjoin  tlie  execution  of  a  mandate 
of  tlie  supreme  court.  (Quan  Wo  Chung  v.  Laumeister,  83  Cal. 
384,  17  Am.  St.  Kep.  261,  23  Pac.  320.) 

An  action  to  annul  an  ordinance  of  the  board  of  supervisors 
fixing  water  rates  is  within  the  equitable  jurisdiction  of  the 
superior  court.  (Spring  Valley  W.  Y^.  v.  San  Francisco,  82 
Cal.  286,  16  Am.  St.  Rep.  116,  22  Pac.  910,  6  L.  R.  A.  756.) 

The  superior  court,  as  a  court  of  equity,  has  power  in  proper 
cases  to  hear  and  determine  questions  relating  to  the  rights  and 
duties  of  executors  and  beneficiaries  under  wills  which  have 
been  admitted  to  probate.  (Williams  v.  Williams,  73  Cal.  99, 
14  Pac.  394.) 

The  superior  court  has  jurisdiction  of  a  suit  in  equity  against 
the  administrator  of  a  deceased  person  for  the  specific  perform- 
ance of  a  contract  for  the  sale  and  purchase  of  lands.  (Hall 
V.  Rice,  64  Cal.  443,  1  Pac.  891.) 

The  superior  courts  are  vested  with  the  same  chancery  juris- 
diction which  was  vested  in  the  high  courts  of  chancery  in  Eng- 
land, and  the  equity  power  is  not  curtailed  by  the  code  provi- 
sions regulating  injunctions.  (Pasadena  v.  Superior  Court,  157 
Cal.  781,  109  Pac.  620.) 

The  superior  court  in  an  action  brought  in  good  faith  to  fore- 
close an  asserted  mechanic's  lien  has  jurisdiction  upon  finding 
against  the  claim  of  lien  to  render  a  personal  judgment. 
(Becker  v.  Superior  Court,  151  Cal.  313,  90  Pac.  689.) 

An  action  to  foreclose  a  mechanic's  lien  is  a  suit  in  equity, 
(Becker  v.  Superior  Court,  151  Cal.  313,  90  Pac.  689.) 

The  legislature  cannot  take  away  the  equity  jurisdiction  con- 
ferred on  the  courts  by  the  constitution.  (Bacon  v.  Bacon,  150 
Cal.  477,  89  Pac.  317.) 

The  superior  court  has  power  to  compel  a  discovery  in  all 
cases  in  which,  under  the  established  rules  of  chancery  practice 
existing  at  the  time  of  the  adoption  of  the  constitution,  a  party 
would  have  been  entitled  to  this  relief.  (Union  etc.  Co.  v. 
Supreme  Court,  149  Cal.  790,  87  Pac.  1035.) 

The  district  courts  had  power  to  appoint  receivers  in  "cases 
where  receivers  had  theretofore  been  appointed  by  the  usages 
of  the  courts  of  equity."  (Bateman  v.  Superior  Court,  54  Cal. 
285;  La  Societe  Francaise  v.  District  Court,  53  Cal.  495.) 


235  CONSTITUTION  OF  1879.  Art.  VI,  §  5 

In  this  state,  tbe  jurisdiction  of  courts  of  equity  over  ques- 
tions of  title  to  real  estate  has  no  existence.  (Ritchie  v.  Dor- 
land,  6  Cal.  33.) 

Under  the  general  grant  of  jurisdiction  in  all  eases  in  equity, 
the  court  may  issue  writs  of  mandamus,  certiorari,  prohibition, 
and  habeas  corpus.     (Perry  v.  Ames,  26  Cal.  372.) 

An  action  to  abate  a  nuisance  is  a  case  in  equity.  (People 
V.  Moore,  29  Cal.  427;  Courtwright  v.  Bear  Eiver  etc.  Co.,  30 
Cal.  573;  Yolo  County  v.  Sacramento,  36  Cal.  193.) 

In  Rosenberg  v.  Frank,  5&  Cal.  387,  it  was  held  that  the  cor- 
responding section  of  the  constitution  of  1849  conferred  upon 
the  district  courts  the  same  jurisdiction  in  equity  as  that  ad- 
ministered by  the  high  court  of  chancery  in  England,  including 
the  power  to  construe  a  will  after  it  has  been  admitted  to  pro- 
bate. But,  under  the  present  constitution,  it  is  held  that  the 
power  to  construe  a  will  is  vested  exclusively  in  the  superior 
court  sitting  as  a  court  of  probate.  (Toland  v.  Earl,  129  Cal. 
148,  79  Am.  St.  Rep.  100,  61  Pac.  914.) 

Conceding  that  the  superior  court  has  jurisdiction  of  an  ac- 
tion to  construe  a  will,  it  is  not  bound  to  entertain  such  an 
action,  and  should  not  do  so,  except  in  case  where  there  is  some 
special  reason  for  seeking  its  interpretation.  (Siddall  v.  Har- 
rison, 73  Cal.  560,  15  Pac.  130.) 

Under  the  former  constitution  it  was  held  that  an  action  in 
equity  to  compel  an  administrator  to  account  would  lie,  al- 
though his  account  had  been  settled  by  the  probate  court. 
(Clarke  v.  Perry,  5  Cal.  58,  63  Am.  Dec.  82.) 

Probate. — Prior  to  the  organization  of  the  state,  there  was 
no  such  a  thing  as  the  probate  of  a  will;  and  the  probate  court 
has  no  jurisdiction  to  probate  a  will  executed  prior  to  that 
time  by  the  death  of  the  testator.  (Grimes  v.  Norris,  6  Cal. 
621,  65  Am.  Dec.  545;  Coppinger  v.  Rice,  33  Cal.  408;  Castro 
V.  Castro,  6  Cal.  158.) 

The  courts  of  first  instance,  between  the  acquisition  of  Cali- 
fornia by  tjie  United  States  and  the  passage  of  the  probate  act, 
had  jurisdiction  in  matters  of  probate.  (Ryder  v.  Cohn,  37  Cal. 
69.) 

The  estates  of  deceased  persons  in  this  state,  who  died  prior 
to  the  passage  of  the  Probate  Act  of  1850,  and  subsequent  to 
the  organization  of  the  slate,  can  be  administered  on  in  accord- 
ance with  the  probate  act.     (People  v.  Senter,  28  Cal.  502.) 


Art.  VI,  §  5         CONSTITUTION  OF  1879.  236 

The  probate  court  is  a  court  of  limited  and  inferior  jurisdic- 
tion. (Grimes  v.  Norris,  6  Cal.  621,  65  Am.  Dec.  545;  Clarice 
V.  Perry,  5  Cal.  58,  63  Am.  Dec.  82;  Smith  v.  Andrews,  6  Cal. 
652;  Smith  v.  Westerfield,  88  Cal.  374,  26  Pac.  206.) 

No  distinct  "court  of  probate"  has  been  created  or  recognized 
by  the  constitution.     (In  re  Burton,  93  Cal.  459,  29  Pac.  36.) 

The  superior  court,  when  sitting  as  a  court  of  probate,  has 
power  to  hear  and  determine  all  questions  of  law  and  fact,  the 
determination  of  which  is  ancillary  to  a  proper  judgment  in 
such  case.     (In  re  Burton,  93  Cal.  459,  29  Pac.  36.) 

The  jurisdiction  of  the  superior  court  over  probate  matters 
is  conferred  by  the  constitution,  and  it  is  not  a  statutory 
tribunal  when  sitting  in  probate.  (Heydenfeldt  v.  Superior 
Court,  117  Cal.  348,  49  Pac.  210.) 

The  probate  court  has  exclusive  jurisdiction  of  legacies. 
(Drinkhouse  v.  Merritt,  134  Cal.  580,  66  Pac.  78-5.) 

The  probate  court  has  no  jurisdiction  to  settle  a  disputed 
claim  by  a  third  person  against  the  guardian  or  the  estate  of 
a  ward.     (Guardianship  of  Breslin,  135  Cal.  21,  66  Pac.  962.) 

A  court  of  equity  cannot  set  aside  a  decree  of  distribution 
made  by  the  probate  court  on  the  ground  of  fraud  of  the  person 
securing  it;  but  in  case  of  extrinsic  fraud  it  may  declare  such 
person  a  trustee  of  the  defrauded  parties.  (Sohler  v.  Sohler, 
135  Cal.  323,  87  Am.  St.  Eep.  98,  67  Pac.  282.) 

Questions  in  regard  to  assignments  made  by  an  heir  apparent 
are  not  within  the  scope  of  probate  proceedings.  (Estate  of 
Ryder,  141  Cal.  366,  74  Pac.  993.) 

The  superior  court  sitting  as  a  court  of  probate  has  no  juris- 
diction to  annul  an  administration  and  compel  the  administrator 
to  return  all  the  property  which  has  come  into  his  hands,  on 
the  ground  that  the  administration  was  granted  on  the  estate 
of  a  living  person,  (Costa  v.  Superior  Court,  137  Cal.  79,  69 
Pac.  840.) 

The  determination  of  a  judgment  lien  against  a  devisee  is 
not  a  matter  of  probate.  (Martinovich  v.  Marsicano,  137  Cal. 
354,  70  Pac.  459.) 

When  a  title  by  patent  from  the  United  States  vested  abso- 
lutely in  the  widow  and  two  children  of  the  deceased  husband 
and  father,  free  of  any  trust  attaching  to  his  estate,  the  su- 
perior   court    sitting    in    probate    has    no    jurisdiction    over    it. 


237  CONSTITUTION  OP  1879.         Art.  VI,  §  5 

(Southern  Cal.  M.  T.  Co.  v.  Lincoln  University,  137  Cal.  508, 
70  Pac.   1129.) 

The  former  constitution  did  not  confer  on  the  probate  court 
jurisdiction  of  all  matters  relating  to  the  estates  of  deceased 
persons,  but  of  such  matters  only  as  the  statutes  direct  it  to 
exercise  jurisdiction  over.      (Bush  v.  Lindsey,  44  Cal.  121.) 

Probate  courts  have  no  jurisdiction  to  enforce  a  trust  by  com- 
pelling an  administrator  to  convey  property  by  him  held  in 
trust.     (Haverstick  v.  Trudel,  51  Cal.  431.) 

The  probate  court  has  no  jurisdiction  to  compel  an  attorney 
of  an  executrix  to  return  a  fee  paid  him  by  her.  (Tomsky  v. 
Superior  Court,  131  Cal.  620,  63  Pac.  1020.) 

The  probate  courts  have  not  exclusive  jurisdiction  in  cases 
of  guardianship  of  minors.     (Wilson  v.  Eoach,  4  Cal.  362.) 

The  district  courts  had  the  same  control  over  the  persons  of 
minors,  as  well  as  their  estates,  that  the  court  of  chancery  in 
England  possesses.     ("Wilson  v.  Eoach,  4  Cal.  362.) 

Neither  the  probate  court,  nor  the  superior  court  when  exer- 
cising probate  jurisdiction,  has  power  to  set  aside  a  decree  of 
distribution  on  the  ground  of  fraud,  after  the  time  mentioned 
in  section  473  of  the  Code  of  Civil  Procedure.  (Estate  of  Hud- 
son, 63  Cal.  454.) 

The  jurisdiction  of  the  probate  courts  over  the  estates  of 
deceased  persons  did  not  devest  the  district  courts  of  their  gen- 
eral jurisdiction  as  courts  of  chancery  over  actions  for  a  settle- 
ment of  the  affairs  of  a  partnership.  (Griggs  v.  Clark,  23  Cal. 
427.) 

Where  the  executors  named  in  the  will  are  also  appointed 
trustees  to  control  and  manage  the  residue  of  the  estate  and  to 
distribute  it  among  certain  beneficiaries,  a  court  of  equity  has 
no  jurisdiction  of  a  bill  to  enforce  an  accounting  of  the  trust 
estate,  pending  administration  of  the  estate  in  the  probate 
court.     (Dougherty  v.  Bartlett,  100  Cal.  496,  35  Pac.  431.) 

The  probate  court  cannot  decide  an  adverse  claim  to  property 
asked  to  be  set  aside  as  a  homestead.  (Estate  of  Kimberly,  97 
Cal.  281,  32  Pac.  234.) 

The  superior  court  sitting  as  a  court  of  probate  may  examine 
into  the  title  to  parcels  of  real  estate,  for  the  purpose  of  select- 
ing a  homestead,  but  has  no  jurisdiction  to  determine  the  title 
as  betwcf'n  adverse  claimants.  (Estate  of  Burton,  64  Cal.  428, 
1  Pac.  702.) 


Art.  VI,  §  5         CONSTITUTION  OF  1879.  238 

In  probate  proceedings  the  court  has  jurisdiction  of  the 
claims  of  assignees  of  the  heir,  but  its  jurisdiction  does  not 
extend  to  claims  of  an  equitable  nature  against  the  legal  owner, 
or,  in  other  words,  to  trusts.  (More  v.  More,  133  Cal.  489,  65 
Pae.  1044.) 

The  probate  court  has  no  jurisdiction  to  settle  the  accounts 
of  a  deceased  guardian.     (In  re  Allgier,  65  Cal.  228,  3  Pac.  849.) 

The  probate  court  has  no  jurisdiction  to  determine  whether 
or  not  certain  property  in  the  possession  of  the  executor  belongs 
to  the  estate  or  is  held  by  him  in  some  other  capacity.  (In  re 
Haas,  97  Cal.  232,  31  Pac.  893.) 

Sections  1458  to  1461  of  the  Code  of  Civil  Procedure  do  not 
provide  for  a  proceeding  involving  title  to  property  of  which 
the  probate  court  has  no  jurisdiction.  (Levy  v.  Superior  Court, 
105  Cal.  600,  38  Pac.  965,  29  L.  R.  A.  811.) 

Where  property  is  devised,  exonerated  of  the  mortgage 
thereon,  the  probate  court  has  jurisdiction  to  compel  the  ex- 
ecutor to  pay  the  mortgage  debt  from  the  assets  of  the  estate. 
(In  re  Heydenfeldt,  106  Cal.  434,  39  Pac.  788.) 

The  probate  court  has  inherent  power  to  order  the  distributee 
to  return  to  the  executors  the  property  distributed,  when  the 
decree  of  distribution  is  reversed  upon  appeal.  (Heydenfeldt 
V.  Superior  Court,  117  Cal.  348,  49  Pac.  210.) 

Under  the  former  constitution  it  was  held  that  the  jurisdic- 
tion of  the  probate  court  over  testamentary  and  probate  matters 
was  not  exclusive.  The  district  court  might  take  jurisdiction 
of  the  settlement  of  an  estate  when  there  were  peculiar  cir- 
cumstances of  embarrassment,  and  when  the  assuming  jurisdic- 
tion would  prevent  waste,  delay  and  expense,  and  thus  con- 
clude, by  one  action  and  decree,  a  protracted  litigation.  (Deck 
V.  Gerke,  12  Cal.  433,  73  Am.  Dec.  555.) 

The  probate  court  has  exclusive  jurisdiction  of  the  following 
matters:  Matters  relating  to  the  proof  of  wills  (Castro  v.  Rich- 
ardson, 18  Cal.  478) ;  probate  of  wills,  granting  of  letters,  allow- 
ance of  claims,  settlement  of  accounts  (In  re  Bowen,  34  Cal. 
682);  to  adjust  and  enforce  a  claim  for  expenses  of  adminis- 
tration (Gurnee  v.  Maloney,  38  Cal.  85,  99  Am.  Dec.  352);  to 
compel  an  executor  to  account,  and  to  distribute  the  estate 
(Auguisola  v.  Arnaz,  51  Cal.  435);  to  construe  a  will  (Toland 
V.  Earl,  129  Cal.  148,  79  Am.  St.  Rep.  100,  61  Pac.  914);  to  de- 
termine who  is  entitled  to  distribution   (Simons  v.  Bedell,  122 


239  CONSTITUTION  OF  1879.  Art.  VI,  §  5 

Cal.  341,  68  Am.  St.  Kep.  35,  55  Pae.  3);  to  determine  whether 
an  attorney  for  absent  or  minor  heirs  shall  be  appointed,  and 
to  fix  the  amount  of  his  compensation.  (Dougherty  v.  Bartlett, 
100  Cal.  496,  35  Pac.  431.) 

The  superior  court,  when  sitting  as  a  court  of  probate,  has 
exclusive  jurisdiction  of  the  distribution  of  an  estate,  and  is 
not  bound  by  an  adjudication  by  the  same  court,  when  sitting 
as  a  court  of  equity,  as  to  the  interest  of  an  heir  or  devisee, 
where  such  interest  was  merely  incidentally  involved.  (Estate 
of  Freud,  134  Cal.  333,  66  Pac.  476.) 

An  action  will  not  lie  to  recover  from  an  executrix  rents 
received  by  her  after  the  settlement  of  her  account,  although 
she  neglected  to  account  for  the  same.  (Washington  v.  Black, 
83  Cal.  290,  23  Pac.  300.) 

A  court  of  equity  has  no  power  to  establish  a  will,  even 
though  the  will  has  been  lost  or  destroyed,  or  has  been  fraudu- 
lently suppressed,  and  the  relief  is  asked  against  a  person  who 
destroyed  the  will  and  is  one  of  the  witnesses  necessary  to 
prove  its  contents.  (McDaniel  v.  Pattison,  98  Cal.  86,  32  Pac. 
805.) 

In  an  action  of  ejectment,  the  superior  court  has  no  power 
to  set  aside  the  land  sought  to  be  recovered  as  a  homestead. 
This  can  only  be  done  by  the  superior  court  sitting  as  a  court 
of  probate.     (Eichards  v.  Wetmore,  66  Cal.  365,  5  Pac.  620.) 

Under  the  former  constitution,  the  district  courts  had  power 
to  decide  issues  of  fact  joined  in  the  probate  court  and  certi- 
fied to  the  district  courts.  This  provision,  however,  did  not 
give  such  courts  any  appellate  jurisdiction  from  the  probate 
courts.     (Reed  v.  McCormick,  4  Cal.  342.) 

An  act  providing  for  the  transfer  to  the  district  courts  of 
issues  of  fact  already  decided  by  the  probate  court  is  void  as 
conferring  appellate  jurisdiction  upon  the  district  courts,  which 
under  the  constitution  they  cannot  exercise.  (Deck  v.  Gerke, 
6  Cal.  666.) 

After  the  amendment  in  1862,  district  courts  had  no  jurisdic- 
tion to  try  issues  arising  in  the  probate  courts.  (In  re  Bowen, 
34  Cal.  682;  Matter  of  Tomlinson,  35  Cal.  509.) 

The  probate  court  was  not  bound  by  a  decision  by  the  district 
court  as  to  a  fact  certified  to  that  court  for  decision.  (Pond  v. 
Pond,  10  Cal.  495.) 


Art.  VI,  §  5         CONSTITUTION  OF  1879.  240 

The  probate  court  had  jurisdiction  to  try  and  determine  is- 
sues of  fact  arising  in  proceedings  before  it,  and  was  only- 
required  to  certify  the  issue  to  the  district  court  when  the  evi- 
dence was  conflicting,  etc.     (Keller  v.  Franklin,  5  Cal.  432.) 

The  supreme  court  sitting  in  probate  has  exclusive  jurisdic- 
tion of  accounts  of  executors  and  administrators.  (Elizalde  v. 
Murphy,  4  Cal.  App.  114,  87  Pac.  245.) 

The  superior  court  sitting  in  probate  has  exclusive  jurisdic- 
tion on  allowance  of  administrator's  fees,  expenses  and  attor- 
ney's fees,  whether  claimed  by  the  administrator  or  the  repre- 
sentatives of  a  deceased  administrator.  (Elizalde  v.  Murphy,  4 
Cal.  App.  114,  87  Pac.  245.) 

The  superior  court  sitting  in  probate  has  such  equitable  juris- 
diction as  may  be  necessary  to  the  exercise  of  its  proper  func- 
tions.     (Elizalde  v.  Murphy,  4  Cal.  App.  114,  87  Pac.  245.)    . 

Under  the  former  constitution  the  probate  court  had  such 
jurisdiction  only  as  was  conferred  upon  it  by  the  legislature, 
while  under  the  present  constitution  the  superior  court  has  ju- 
risdiction "of  all  matters  of  probate."  (Elizalde  v.  Murphy, 
4  Cal.  App.  114,  87  Pac.  245.) 

Divorce. — In  a  suit  for  divorce  and  a  partition  of  the  prop- 
erty acquired  during  coverture,  the  jurisdiction  of  the  court 
does  not  depend  upon  the  amount  involved.  (Deuprez  v.  Deu- 
prez,  5  Cal.  387.) 

The  grant  of  jurisdiction  in  actions  of  divorce  does  not  pre- 
vent the  legislature  from  making  reasonable  regulations  as  to 
the  proceedings  by  which  such  jurisdiction  is  exercised,  or  from 
taking  away  the  right  of  divorce  entirely.  (Grannis  v.  Su- 
perior Court,  146  Cal.  245,  106  Am.  St.  Eep.  23,  79  Pac.  891.) 

Insolvency. — The  act  creating  the  bank  commissioners  did  not 
deprive  the  superior  court  of  its  power  to  hear  and  determine 
matters  of  insolvency.  (People  v.  Superior  Court,  100  Cal.  105, 
34  Pac.  492.) 

The  legislature  may  pass  an  insolvency  law  while  a  United 
States  bankruptcy  law  is  in  force,  but  its  operation  will  be 
suspended  until  the  repeal  of  the  federal  law.  (Lewis  v. 
County  Clerk,  55  Cal.  604;  Seattle  Coal  etc.  Co.  v.  Thomas,  57 
Cal.  197;  Boedefeld  v.  Reed,  55  Cal.  299.) 

Since  the  new  constitution  proceedings  in  insolvency  are  no 
longer  special  cases.     (People  v.  Eosborough,  29  Cal.  415.) 


241  CONSTITUTION  OP  1879.  Art.  VI,  §  5 

The  mere  fact  that  jurisdiction  in  cases  of  insolvency  is 
vested  in  the  court  does  not  prevent  the  legislature  from  au- 
thorizing the  judge  to  make  an  order  in  chambers  directing  the 
clerk  to  give  notice  to  creditors.      (Flint  v.  Wilson,  36  Cal.  24.) 

Tax.  etc. — The  term  "assessment"  as  used  in  this  section  does 
not  include  assessments  made  by  a  private  corporation  upon  its 
stockholders,  but  refers  to  such  assessments  as  are  authorized 
in  relation  to  revenue  and  taxation,  and  such  as  may  be  made 
under  the  authority  of  a  municipal  or  other  corporation  to  meet 
the  cost  of  a  public  improvement.  (Arroj'o  Ditch  etc.  Co.  v. 
Superior  Court,  92  Cal.  47,  27  Am.  St.  Eep.  91,  28  Pac.  54.) 

A  forfeiture  for  issuing  a  certificate  of  relief  in  violation  of 
section  596  of  the  Political  Code  is  not  a  municipal  fine,  or  a 
tax,  impost,  toll,  or  assessment.  (Thomas  v.  Justice's  Court,  80 
Cal.  40,  22  Pac.  80.) 

An  action  against  an  assessor  to  recover  damages  for  a 
wrongful  and  fraudulent  assessment  made  by  him  does  not  in- 
volve "the  legality  of  a  tax."  (Perkins  v.  Ealls,  71  Cal.  87,  11 
Pac.  860.) 

A  proceeding  to  modify  the  grade  of  a  street  is  a  special  one. 
and  not  a  case  at  law  involving  the  legality  of  an  assessment. 
(Appeal  of  Houghton,  42  Cal.  35.) 

A  license  fee  or  charge  for  the  transaction  of  any  business 
is  a  tax.     (Santa  Barbara  v.  Stearns,  51  Cal.  409.) 

An  action  to  recover  a  sum  exacted  by  a  toll  gatherer,  greater 
than  he  is  permitted  by  law  to  collect,  does  not  involve  the 
legality  of  a  toll.     (Brown  v.  Kice,  52  Cal.  489.) 

Special  proceedings. — The  county  courts  only  had  jurisdic- 
tion in  such  special  cases  as  the  legislature  should  determine. 
(Matter  of  Marks,  45  Cal.  199.) 

A  grant  of  jurisdiction  in  such  special  cases  as  the  legislature 
may  prescribe  does  not  confer  exclusive  jurisdiction  in  special 
cases.  (O'Callaghan  v.  Booth,  6  Cal.  63;  Harper  v.  Freelon,  6 
Cal.  76.) 

As  to  whether  the  legislature  may  confer  jurisdiction  of  spe- 
cial cases  upon  courts  not  established  by  the  constitution,  see 
Spencer  Creek  Water  Co.  v.  Vallejo,  48  Cal.  70. 

The  legislature  cannot  confer  jurisdiction  in  "special  cases" 
upon  a  judge.  (Spencer  Creek  Water  Co.  v.  Vallejo,  48  CaL 
70.) 

Constitution — 16 


Art.  VI,  §  5  CONSTITUTION  OF  1879,  242 

Special  cases  are  cases  created  by  statute  and  the  proceedings 
under  -wliich  are  unknown  to  the  general  framework  of  the 
courts  of  common  law  and  eq.uity.  (Parsons  v.  Tuolumne  Co. 
Water  Co.,  5  Cal.  43,  63  Am.  Dec.  76;  People  v.  Day,  15  Cal.  91; 
People  V.  Kern  Co.,  45  Cal.  679.) 

An  action  to  prevent  or  abate  a  nuisance  is  not  a  special  case. 
(Parsons  v.  Tuolumne  Co.  V»'ater  Co.,  5  Cal.  43,  63  Am.  Dec.  76.) 

Writs  of  mandate  are  not  special  cases.  (People  v.  Kern  Co., 
45  CaL  679.) 

The  Incoraoration  of  towns  is  not  a  special  case.  (People  v. 
Nevada,  6  Cal.  143.) 

The  following  matters  are  special  cases  within  the*  meaning 
of  the  constitution:  Cases  of  insolvency  (Harper  v.  Preelon,  6 
Cal.  76);  election  contests  (Dorsey  v.  Barry,  24  Cal.  449;  Saun- 
ders V.  Haynes,  13  Cal.  145);  the  examination  of  claims  for 
public  lands  (Ricks  y.  Reed,  19  Cal.  551);  proceedings  to  en- 
force mechanics'  liens  (McNeil  v.  Borland,  23  Cal.  144,  distin- 
guishing Brock  V.  Bruce,  5  Cal.  279);  proceedings  for  the  con- 
denmation  of  water  (Spencer  Creek  Water  Co.  v.  Vallejo,  48 
Cal.  70);  proceedings  under  sections  312  and  315  of  the  Civil 
Code  (Wickersham  v.  Brittan,  93  Cal.  34,  28  Pac.  792,  29  Pac. 
51,  15  L.  R.  A.  106);  proceedings  to  condemn  land  (Bishop  v. 
Superior  Court,  87  Cal.  226,  25  Pac.  435). 

Section  4  of  the  act  of  1897  for  the  formation  of  irrigation 
districts  (Stats.  1897,  p.  254),  providing  for  an  appeal  directly 
to  the  superior  court  of  the  county  from  an  order  of  the  board 
of  supervisors  granting  an  application  for  the  formation  of  a 
district,  is  unconstitutional  and  void.  The  legislature  has  no 
power  to  extend  the  jurisdiction,  original  or  appellate,  of  the 
superior  court.  (Chinn  v.  Superior  Court,  156  Cal.  478,  105  Pac. 
580.) 

Real  property. — The  idea  intended  to  be  embodied  in  the 
phrase,  "cases  at  law  which  involve  the  title  or  possession  of 
real  property,"  may  be  expressed  by  the  paraphrase:  Cases  at 
law  in  which  the  title  or  possession  of  real  property  is  a  mate- 
rial fact  in  the  case,  upon  which  the  plaintiff  relies  for  a  re- 
covery or  the  defendant  for  a  defense.  (Holman  v.  Taylor,  31 
Cal.  338;  Copertini  v.  Oppermann,  76  Cal.  181,  18  Pac.  256.) 

When  the  title  to  real  property  is  involved,  the  amount  sued 
for  is  not  material  in  determining  the  jurisdiction.  (Cullen  v. 
Langridge,  17  Cal.  67;  Holman  v.  Taylor,  31  Cal.  338.) 


243  CONSTITUTION  OP  1879.         Art.  VI,  §  5 

It  is  not  enough  that  the  possession  is  a  fact  in  controversy, 
or  incidentally  in  question,  or  that  the  fact  of  possession  is  in 
issue;  but  the  right  of  possession  must  be  involved.  (Pollock 
V.  Cummings,  38  Cal.  683;  Cornett  v.  Bishop,  39  Gal.  319.) 

An  action  to  recover  one-half  of  the  value  of  a  partition 
fence  involves  the  title  to  real  property.  (Holman  v.  Taylor, 
31  Cal.  338.) 

An  action  brought  in  a  justice's  court  against  a  railroad  com- 
pany by  an  owner  of  adjoining  land,  to  recover  for  the  killing 
of  a  colt  alleged  to  have  strayed  upon  the  track  by  reason  of 
the  insufficiency  of  a  division  fence,  necessarily  involves  the 
title  to  such  land,  although  the  ansvper  raises  no  issue  as  to 
such  ownership.  (Boyd  v.  Southern  Cal.  Ry.  Co.,  126  Cal.  571, 
58  Pac.  1046.) 

An  action  to  foreclose  a  vendor's  lien  upon  premises  con- 
tracted to  be  sold  is  an  action  for  the  enforcement  of  a  lien 
upon  real  estate  within  the  provisions  of  this  section.  (South- 
ern Pac.  R.  R.  Co.  v.  Pixley,  103  Cal.  118,  37  Pac.  194.) 

An  action  by  a  vendee  to  a  contract  for  the  sale  of  land  to 
recover  a  part  payment  made  on  the  purchase  price,  because  of 
a  defect  in  the  title  of  the  vendor,  involves  the  title  to  real 
property.     (Copertini  v.  Oppermann,  76  Cal.  181,  18  Pac.  256.) 

Where  an  action  involving  the  title  or  possession  of  real  prop- 
erty is  brought  in  the  justice's  court,  and  the  defendant  appeals 
to  the  superior  court,  which  renders  judgment  in  favor  of  the 
jilaintifif,  the  defendant  may  appeal  to  the  supreme  court. 
(Hart  V.  Carnall-Hopkins  Co.,  101  Cal.  160,  35  Pac.  633;  Santa 
Barbara  v.  Eklred,  95  Cal.  378,  30  Pac.  562.) 

Where  an  action  to  recover  less  than  three  hundred  dollars 
is  transferred  from  the  justice's  court  to  the  superior  court  on 
the  ground  that  it  involves  the  title  to  real  estate,  and  the 
plaintiff  afterward  amends  his  complaint  and  asks  for  damages 
to  certain  lands,  the  superior  court  has  no  jurisdiction  of  the 
action,  as  it  docs  not  ajjpear  that  the  action  involves  the  title 
to  real  estate.     (Gorton  v.  Ferdinando,  64  Cal.  11,  27  Cal.  941.) 

An  action  for  specific  performance  of  a  contract  for  the  sale 
of  land  is  not  an  action  for  the  recovery  of  the  possession  of 
or  quieting  title  to  real  estate.  (Grocers  etc.  Union  v.  Kern 
etc.  Co.,  150  Cal.  466,  89  Pac.  120.) 

Place  of  trial. — The  proviso  in  this  section  is  mandatory. 
(Fresno  Nat.  Bank  v.  Superior  Court,  83  Cal.  491,  24  Pac.  157.) 


Art.  VI,  §  5  CONSTITUTION  OP  1879.  244 

The  proviso  to  this  section  is  to  be  strictly  construed,  and 
does  not  include  an  action  to  recover  damages  for  interfering 
with  an  easement  for  a  canal,  where  there  is  nothing  in  the 
complaint  to  indicate  that  the  defendant  claims  any  right  or 
title  to  the  easement  of  the  canal.  (Miller  &  Lux  v.  Kern  Co. 
Land  Co.,  140  Cal.  132,  73  Pac.  836.) 

An  action  may  be  brought  under  the  proviso  to  this  section 
to  partition  several  distinct  tracts  of  land  situated  in  different 
counties.  As  to  whether  or  not  partition  is  an  action  "quieting 
title  to"  real  estate  not  decided.  ^Murphy  v.  Superior  Court, 
138  Cal.  69,  70  Pac.  1070.) 

An  action  to  have  it  adjudged  that  plaintiff  is  the  owner  of 
an  undivided  third  of  a  mining  property,  and  to  compel  a  con- 
veyance thereof,  must  be  brought  in  the  county  in  which  the 
miniiig  property  is  located.  (McFarland  v.  Martin,  144  Cal. 
771,  78  Pac.  239.) 

An  action  to  establish  a  trust  in  land  must  be  tried  in  the 
county  where  the  laud  is  situated.  (Hannah  v.  Canty,  1  Cal 
App.  225,  81  Pac.  1035.) 

Where  property  situated  in  different  counties  is  mortgaged 
to  secure  a  debt,  the  superior  court  of  either  county  has  juris- 
diction of  a  suit  to  foreclose.  (Kent  v.  Williams,  146  Cal.  3,  79 
Pac.  527.) 

The  superior  court  has  no  jurisdiction  of  an  action  to  enforce 
a  lien  upon  real  property  situated  in  another  county.  (Urton 
V.  Woolsey,  87  Cal.  38,  25  Pac.  154.) 

This  section  has  no  application  to  an  action  for  the  settle- 
ment of  a  trust  in  relation  to  real  and  personal  property,  and 
such  an  action  is  not  required  to  be  brought  in  the  county 
where  the  real  property  is  situated.  (Le  Breton  v.  Superior 
Court,  66  Cal.  27,  4  Pac.  777.) 

If  an  action  to  quiet  title  to  real  estate  is  brought  outside 
of  the  county  in  which  the  land  is  situated,  the  court  has  no 
jurisdiction,  and  such  lack  of  jurisdiction  cannot  be  waived. 
(Fritts  v.  Camp,  94  Cal.  393,  29  Pac.  867.) 

An  action  to  set  aside  a  judgment  procured  by  fraud  is  a  suit 
in  equity  and  need  not  be  brought  in  the  county  in  which  the 
judgment  was  recovered,  (Herd  v.  Tuohy,  133  Cal.  55,  65  Pac. 
139.) 


245  CONSTITUTION  OF  1879.  Art.  VT,  §  5 

The  creating  of  a  new  county  does  not  affect  an  action  pend- 
ing in  the  superior  court  affecting  real  property  in  such  new 
county.     (Tolman  v.  Smith,  85  Cal.  280,  24  Pac.  743.) 

This  section  does  not  provide  that  the  actions  referred  to 
must  be  tried,  but  simply  that  they  must  be  commenced  in  the 
county  in  which  the  land  is  situated.  (Hancock  v.  Burton,  61 
Cal.  70.) 

Writs. — The  legislature  has  no  power  to  enlarge  the  oflSce  of 
the  writs  mentioned  in  this  section.  (Camron  v.  Kenfield,  57 
Cal.  550;  Farmers'  Union  v.  Thresher,  62  Cal.  407.) 

The  superior  court  may  issue  a  writ  of  mandamus  to  run  out 
of  the  county,  or  to  be  executed  out  of  the  county  in  which  the 
court  is  held.  (Kings  County  v.  Johnson,  104  Cal.  198,  37  Pac. 
870.) 

If  the  provisions  of  this  section  reviving  the  writ  of  quo  war- 
ranto repealed  by  implication  the  provisions  of  the  code  for 
an  action  against  persons  who  usurp  offices  or  franchises,  it 
made  little  difference,  as  the  power  under  a  writ  of  quo  war- 
ranto is  quite  as  broad  as  under  the  statute.  (People  v.  Dash- 
away  Assn.,  84  Cal.  114,  24  Pac.  277,  12  L.  R.  A.  117.) 

The  county  court  had  no  jurisdiction  to  issue  the  writ  of  cer- 
tiorari, except  in  aid  of  its  appellate  jurisdiction.  (Wilcox  v. 
Oakland,  49  Cal.  29.) 

Criminal  cases. — The  superior  court  has  jurisdiction  of  an 
offense  punishable  by  imprisonment  and  fine,  which  may  exceed 
one  thousand  dollars.  (Ex  parte  Neustadt,  82  Cal.  273,  23  Pac. 
124.) 

Where  the  legislature  confers  upon  police  courts  jurisdiction 
of  certain  misdemeanors,  such  jurisdiction  is  exclusive,  and  the 
superior  court  has  no  jurisdiction  of  such  misdemeanors. 
(Green  v.  Superior  Court,  78  Cal.  556,  21  Pac.  307,  541;  People 
V.  Joselyn,  80  Cal.  544,  22  Pac.  217;  People  v.  Lawrence,  82 
Cal.  182,  22  Pac.  1120;  Ex  parte  Wallingford,  60  Cal.  103;  Gaf- 
ford  V.  Bush,  60  Cal.  149.) 

If  a  defendant  is  charged  with  a  felony  of  which  the  superior 
court  has  jurisdiction,  he  may  be  convicted  of  a  lesser  offense 
involved  in  such  felony,  altliough  such  lesser  offense  is  not  one 
of  which  the  superior  court  is  given  jurisdiction.  (Ex  parte 
Donahue,  65   Cal.  474,  4   Pac.  449.) 

The  provision  of  the  San  Francisco  charter  giving  the  police 
court  "concurrent  jurisdiction  with   the  superior  court"   of  all 


Art.  VI,  §  5  CONSTITUTION  OF  1879.  246 

other  misdemeanors  than  those  arising  under  the  violation  of 
ordinances  is  in  violation  of  this  section.  (Robert  v.  Police 
Court,  148  Cal.  131,  82  Pac.  838.) 

A  newly  created  county  has  jurisdiction  of  a  defendant 
charged  with  the  commission  of  an  offense  prior  to  the  creation 
of  the  county,  upon  territory  within  its  boundaries;  and  a 
prosecution  pending  in  the  old  county  is  no  bar  to  the  prosecu- 
tion, if  dismissed  before  the  commencement  of  the  prosecution 
in  the  new,  and  before  jeopardy  has  attached.  (People  v. 
Stokes,  103  Cal.  193,  42  Am.  St.  Rep.  102,  37  Pac.  207.) 

The  superior  court  has  no  jurisdiction  of  a  misdemeanor  com- 
mitted by  a  corporation  punishable  by  fine  not  exceeding  five 
hundred  dollars  or  imprisonment  not  exceeding  six  months. 
(People  v.  Palermo  L.  &  W.  Co.,  4  Cal.  App.  717,  89  Pac.  723.) 

The  superior  court  only  has  jurisdiction  of  cases  of  misde- 
meanor not  otherwise  provided  for.  (People  v.  Palermo  L.  & 
W.  Co.,  4  Cal.  App.  717,  89  Pac.  723.) 

Appellate  jurisdiction. — The  superior  court  has  appellate  ju- 
risdiction only  to  the  extent  and  in  the  mode  which  the  legis- 
lature may  prescribe.  (Sherer  v.  Superior  Court,  94  Cal.  354, 
29  Pac.  716.) 

The  constitution  gives  the  superior  court  no  appellate  juris- 
diction, but  the  legislature  is  permitted  to  give  it  such  appel- 
late jurisdiction  as  it  may  see  fit.  (Wells  v.  Torrance,  119  Cal. 
437,  51  Pac.  626.) 

By  reason  of  the  provisions  of  section  11,  article  22,  of  the 
constitution,  the  superior  court  had  jurisdiction  of  appeals  from 
justices'  courts  before  the  legislature  acted  upon  the  subject. 
(California  etc.  Co.  v.  Superior  Court,  60  Cal.  305.) 

The  superior  courts  only  have  jurisdiction  of  appeals  from 
justices'  courts  in  their  respective  counties,  and  therefore,  after 
an  appeal,  the  action  cannot  be  transferred  to  another  county 
for  trial,  although  the  defendant  resides  in  another  county. 
(Gross  V.  Superior  Court,  71  Cal.  382,  12  Pac.  264;  Luco  v.  Su- 
perior Court,  71  Cal.  555,  12  Pac.  677.) 

The  superior  court  has  no  jurisdiction  of  an  appeal  from  an 
order  of  a  justice's  court,  directing  the  judgment  debtor  to 
apply  certain  property  in  satisfaction  of  the  judgment.  (Wells 
V.  Torrance,  119  Cal.  437,  51  Pac.  626.) 

Upon  an  appeal  from  a  judgment  of  the  justice's  court  vacat- 
ing a  former  jud^^nent,   the  superior  court   cannot   affirm  such 


247  CONSTITUTION  OF  1879.         Art.  VI,  §  5 

former  judgment,  but,  if  it  was  erroneously  set  aside,  it  should 
reverse  such  judgment  and  order  a  new  trial.  (Sherer  v.  Su- 
perior Court,  94  Cal.  354,  29  Pac.  716.) 

Although  the  county  court  was  authorized  to  try  cases  on 
appeal  de  novo,  such  a  trial  was  not  an  exercise  of  original 
jurisdiction.      (Townsend  v.  Brooks,  5  Cal.  52.) 

Where  a  ease  is  appealed  to  the  superior  court  on  question 
of  both  law  and  fact,  the  superior  court  acquires  jurisdiction 
of  the  cause,  although  it  was  not  originally  within  the  juris- 
diction of  the  justice's  court.  (De  .Tarnatt  v.  Marquez,  132  Cal. 
700,  64  Pac.  1090;  Hart  v.  Carnall-Hopkins  Co.,  103  Cal.  132, 
37  Pac.  196.  But  see  Ballerino  v.  Bigelow,  90  Cal.  500,  27  Pac. 
372.) 

A  judgment  on  appeal  from  a  judgment  of  a  justice's  court, 
in  which  the  amount  is  in  excess  of  the  jurisdiction  of  the  jus- 
tice, is  not  void,  but  merely  erroneous.  (Moore  v.  Martin,  38 
Cal.  428.) 

A  judgment  of  a  county  court  upon  appeal  for  the  sum  of 
three  hundred  dollars  is  void,  and  will  be  annulled  upon  certi- 
orari.     (Will  V.  Sinkwitz,  39  Cal.  570.) 

As  to  whether  the  provision  of  the  constitution  of  1849  giv- 
ing the  county  courts  appellate  jurisdiction  in  cases  arising  in 
inferior  courts  is  self-executing,  see  People  v.  Nyland,  41  Cal. 
129. 

Forcible  entry  and  detainer.^The  words  "forcible  entry  and 
detainer"  include  not  only  forcible  entry  and  forcible  detainer, 
but  also  unlawful  detainer  after  the  termination  of  or  contrary 
to  the  terms  of  the  lease.     (Caulfield  v.  Stevens,  28  Cal.  118.) 

Liens. — The  superior  court  has  concurrent  jurisdiction  with 
justices  of  the  peace  for  the  foreclosure  of  liens  on  personal 
property  when  the  claim  is  for  less  than  three  hundred  dollars, 
and  the  jdaintiff  is  entitled  to  costs,  whether  he  seeks  relief  in 
one  jurisdiction  or  the  other.  (Clark  v.  Brown,  141  Cal.  93,  74 
Pac*  548.) 

Miscellaneous. — The  county  courts  have  common-law  jurisdic- 
tion and  may  admit  foreigners  to  citizenship.  (In  re  Conner, 
39  Cal.  98,  2  Am.  Dec.  427.) 

Granting  to  county  judges  power  to  issue  injunctions  does 
not  trench  upon  the  jurisdiction  of  the  district  courts.  (Thomp- 
Bon  V.  Williams,  6  Cal.  88.) 


Art.  VI,  §  6         CONSTITUTION  OP  1879.  248 

An  act  providing  for  the  confirmation  of  the  organization 
and  bonds  of  irrigation  districts  is  not  unconstitutional  because 
it  authorizes  the  court  to  determine  the  rights  of  the  parties 
in  advance  of  any  controversy  as  to  such  rights.  (Cullen  v. 
Glendora  etc.  Co.,  113  Cal.  503,  39  Pac.  769,  45  Pac.  822,  1047.) 

Superior  court,  how  constituted. 

Sec.  6.  There  shall  be  in  each  of  the  organized  coun- 
ties, or  cities  and  counties  of  the  state,  a  superior  court, 
for  each  of  which  at  least  one  judge  shall  be  elected  by 
the  qualified  electors  of  the  county,  or  city  and  county, 
at  the  general  state  election;  provided,  that  until  other- 
wise ordered  by  the  legislature,  only  one  judge  shall  bo 
elected  for  the  counties  of  Yuba  and  Sutter,  and  that 
in  the  city  and  county  of  San  Francisco  there  shall  be 
elected  twelve  judges  of  the  superior  court,  any  one  or 
more  of  whom  may  hold  court.  There  may  be  as  many 
sessions  of  said  court,  at  the  same  time,  as  there  are 
judges  thereof.  The  said  judges  shall  choose  from  their 
own  number  a  presiding  judge,  who  may  be  removed  at 
their  pleasure.  He  shall  distribute  the  business  of  the 
court  among  the  judges  thereof,  and  prescribe  the  order 
of  business.  The  judgments,  orders,  and  proceedings  of 
any  session  of  the  superior  court,  held  by  any  one  or 
more  of  the  judges  of  said  courts,  respectively,  shall  be 
equally  effectual  as  if  all  the  judges  of  said  respective 
courts  presided  at  such  session.  In  each  of  the  counties 
of  Sacramento,  San  Joaquin,  Los  Angeles,  Sonoma, 
Santa  Clara,  and  Alameda,  there  shall  be  elected  two 


249  CONSTITUTION  OF  1879.  Art.  VI.  §  6 

such  judges.  The  term  of  office  of  judges  of  the  su- 
perior courts  shall  be  six  years  from  and  after  the  first 
Monday  of  January,  next  succeeding  their  election;  pro- 
vided, that  the  twelve  judges  of  the  superior  court, 
elected  in  the  city  and  county  of  San  Francisco  at  the 
first  election  held  under  this  constitution,  shall,  at  their 
first  meeting,  so  classify  themselves,  by  lot,  that  four  of 
them  shall  go  out  of  office  at  the  end  of  two  years,  and 
four  of  them  shall  go  out  of  office  at  the  end  of  four 
years,  and  four  of  them  shall  go  out  of  office  at  the  end 
of  six  years,  and  an  entry  of  such  classification  shall  be 
made  in  the  minutes  of  the  court,  signed  by  them,  and  a 
duplicate  thereof  filed  in  the  office  of  the  secretary  of 
state.  The  first  election  of  judges  of  the  superior  courts 
shall  take  place  at  the  first  general  election  held  after 
the  adoption  and  ratification  of  this  constitution.  If  a 
vacancy  occur  in  the  office  of  judge  of  a  superior  court, 
the  governor  shall  appoint  a  person  to  hold  the  office 
until  the  election  and  qualification  of  a  judge  to  fill  the 
vacancy,  which  election  shall  take  place  at  the  next  suc- 
ceeding general  election,  and  the  judge  so  elected  shall 
hold  office  for  the  remainder  of  the  unexpired  term. 

SUPERIOR  JUDGES.— There  is  only  one  superior  court  in 
t'iie  city  and  county  of  San  Francisco,  (Brown  v.  Campbell, 
110  Cal.  644,  43  Pac.   12.) 

The  departments  of  the  superior  court  of  a  single  county, 
though  theoretically  one  court,  are  practically  as  distinct,  for 
the  trial  of  causes,  as  other  superior  courts,  and  a  jury  drawn 
for  one  department  cannot  be  used  in  another.  (People  V. 
Wong  Bin,  139  Cal.  GO,  72  Pac.  505.) 


Art.  VI,  §  6         CONSTITUTION  OF  1879.  250 

There  is  no  probate  court  of  the  city  and  county  of  San  Fran- 
cisco, and  there  is  no  law  authorizing  the  designation  of  any 
one  department  of  said  court  for  probate  jurisdiction;  but  each 
of  the  twelve  judges  has  jurisdiction  in  probate  matters.  (In 
re  Pearsons,  113  Cal.  577,  45  Pac.  849.) 

The  legislature  may  fix  the  commencement  of  the  term  of  a 
county  judge  as  well  as  the  time  of  election,  but  cannot  fix  the 
term.      (People  v.  Eosborough,   14  Cal.   180.) 

Though  by  the  terms  of  this  section  the  term  of  office  of  the 
superior  judges  appears  to  be  exclusive  of  the  first  Monday  in 
January  after  their  election,  yet  this  provision  is  controlled  by 
section  20,  article  20,  making  the  terms  of  all  officers  elected 
under  the  constitution  commence  on  the  first  Monday  after  the 
first  day  of  January  next  following  their  election.  (Merced 
Bank  v.  Rosenthal,  99  Cal.  39,  31  Pac.  849,  33  Pac.  732.) 

A  judge  elected  under  an  act  creating  an  additional  judge 
holds  for  six  years.  (People  v.  Waterman,  86  Cal.  27,  24  Pac. 
807.) 

Under  this  section  the  commencement  of  the  first  regular 
full  term  of  every  newly  created  superior  judgeship  commences 
on  the  first  Monday  in  January  [first  Monday  after  the  first 
day  of  January]  after  the  next  ensuing  general  election,  and 
the  legislature  has  no  power  to  extend  the  provisional  term  of 
office  of  a  newly  created  judge  beyond  such  date.  (People  v. 
Markham,  104  Cal.  232,  37  Pac.  918.) 

The  legislature  may  provide  for  the  appointment  of  a  judgo 
of  a  newly  created  court  to  hold  until  the  next  election. 
(Brodie  v.  Campbell,  17  Cal.  11.) 

Tlie  legislature  has  no  power  to  increase  or  diminish  the  term 
of  office  of  superior  judges  as  fixed  by  the  constitution;  and 
such  judge,  therefore,  cannot  hold  after  the  expiration  of  such 
term  and  until  his  successor  has  been  elected  or  appointed. 
(People  v.  Campbell,  138  Cal.  11,  70  Pac.  918.) 

A  district  judge,  elected  on  the  occasion  of  a  vacancy  in  the 
office  caused  by  the  resignation  of  the  incumbent,  holds,  not 
merely  for  the  unexpired  term,  but  for  the  full  six  years. 
(People  V.  Burbank,  12  Cal.  378.) 

A  person  elected  judge  of  the  district  court  is  entitled  to 
hold  for  six  years,  and  it  is  not  necessary  that  all  district 
judges  should  be  elected,  or  that  their  terms  should  expire,  at 
the  same  time.     (People  v.  Weller,  11  Cal.  77.) 


251  CONSTITUTION  OF  1879.     Art.  VI,  §§7,  8 

Where,  after  tbe  api^ointment  of  a  judge  to  fill  a  vacancy 
caused  by  the  death  of  the  incumbent,  the  legislature  passed 
an  act  reducing  the  number  of  judges  of  such  county,  and  pro- 
viding that  the  act  should  go  into  effect  immediately  in  case 
of  a  vacancy  in  the  term  prior  to  January  1,  1897,  the  act 
did  not  go  into  effect  by  reason  of  the  election  of  a  judge 
to  fill  the  unexpired  term.  (Church  v.  Colgan,  117  Cal.  685, 
50  Pac,  12.) 

"When  the  legislature  provides  for  an  additional  superior 
judge,  the  governor  may  appoint  a  provisional  judge  to  act 
until  the  next  election,  but  the  terra  of  such  judge  ends  abso- 
lutely with  the  beginning  of  the  constitutional  term  of  the 
additional  judge  and  is  not  extended  by  the  failure  of  the 
person  elected  to  qualify.  (Bush  v.  Nye,  6  Cal.  App.  298,  92 
Pac.  108.) 

Superior  judges,  apportionment  of  business. 

Sec.  7.  In  any  county,  or  city  and  county,  other  than 
the  city  and  county  of  San  Francisco,  in  which  there 
shall  be  more  than  one  judge  of  the  superior  court,  the 
judges  of  such  court  may  hold  as  many  sessions  of  said 
court  at  the  same  time  as  there  are  judges  thereof,  and 
shall  apportion  the  business  among  themselves  as  equally 
as  may  be. 

SESSIONS. — The  rule  is  the  same  in  the  city  and  county  of 
San  Francisco,  except  that  the  business  of  the  court  is  appor- 
tioned by  the  presiding  judge.     (Kce  section  6  of  this  article.) 

Judge  may  hold  court  in  other  county — Judge  pro  tem- 
pore. 

Sec.  8.  A  judge  of  any  superior  court  may  hold  a 
superior  court  in  any  county,  at  the  request  of  a  judge 
of  the  superior  court  thereof,  and  upon  the  request  of 


Art.  VI,  §  8         CONSTITUTION  OP  1879.  252 

the  governor  it  shall  be  his  duty  so  to  do.  But  a  cause  in 
the  superior  court  may  be  tried  by  a  judge  pro  tempore,, 
who  must  be  a  member  of  the  bar,  agreed  upon  in  writing 
by  the  parties  litigant,  or  their  attorneys  of  record,  and 
sworn  to  try  the  cause  and  the  person  so  selected  shall 
be  empowered  to  act  in  such  capacity  in  all  further  pro- 
ceedings in  any  suit  or  proceedings  tried  before  him  until 
the  final  determination  thereof.  There  may  be  as  many 
sessions  of  a  superior  court  at  the  same  time  as  there 
are  judges  thereof,  including  any  judge  or  judges  acting 
upon  request,  or  any  judge  or  judges  pro  tempore.  The 
judgments,  orders,  acts  and  proceedings  of  any  session 
of  any  superior  court  held  by  one  or  more  judges  acting 
upon  request,  or  judge  or  judges  pro  tempore,  shall  be 
equally  effective  as  if  the  judge  or  all  of  the  judges  of 
such  court  presided  at  such  session.  (Amendment 
adopted  November  8,  1910.) 

[ORIGINAL  SECTION.] 
Sec.  8.  A  judge  of  any  superior  court  may  hold  a  superior 
court  in  any  county,  at  the  request  of  a  judge  of  the  superior 
court  thereof,  and  upon  the  request  of  the  governor  it  shall 
be  his  duty  so  to  do.  But  a  cause  in  a  superior  court  may 
be  tried  by  a  judge  pro  tempore,  who  must  be  a  member  of 
the  bar,  agreed  upon  in  writing  by  the  parties  litigant  or 
their  attorneys  of  record,  approved  by  the  court,  and  sworn 
to  try  the  cause. 

JUDGE  OF  ONE  COUNTY  SITTING  IN  ANOTHER.— Where 

a  judge  of  one  county  acts  in  another,  it  must  be  presumed 
that  he  was  properly  requested  to  do  so.  (In  re  Corralitos  etc, 
Co.,  130  Cal.  570,  62  Pac.  1076.) 


253  CONSTITUTION  OP  1879.         Art.  VI,  §  9 

Under  the  constitution  of  1849  it  -was  held  that  the  legis- 
lature might  authorize  a  judge  of  one  district  to  sit  and  act 
in  another  district,  although  no  express  provision  was  made 
in  the  constitution  on  the  subject.  (People  v.  McCauley,  1 
Cal.  379.) 

A  statute  authorizing  a  county  judge  of  one  county  to  hold 
court  for  the  county  judge  of  another  county  is  valid.  (People 
V.  Mellon,  40  Cal.  648.) 

A  judge  who  is  disqualified  has  power  to  select  a  qualified 
judge  to  try  the  case.  (People  v.  Ebey,  6  Cal.  App.  769,  &3 
Pac.  379.) 

Leave  of  absence — Limitation  of  time. 

Sec.  9.  The  legislature  shall  have  no  power  to  grant 
leave  of  absence  to  any  judicial  officer;  and  any  such 
officer  who  shall  absent  himself  from  the  state  for  more 
than  sixty  consecutive  days  shall  be  deemed  to  have 
forfeited  his  office.  The  legislature  of  the  state  may  at 
any  time,  two-thirds  of  the  members  of  the  senate  and 
two-thirds  of  the  members  of  the  assembly  voting  there- 
for, increase  or  diminish  the  number  of  judges  of  the 
superior  court  in  any  county,  or  city  and  county,  in  the 
state ;  provided,  that  no  such  reduction  shall  affect  any 
judge  who  has  been  elected. 

ADDITIONAL  JUDGES. — When  the  legislature  provides  for 
an  additional  judge,  the  governor  may  appoint  a  provisional 
judge  to  act  until  the  next  election,  but  the  term  of  such 
judge  ends  absolutely  with  the  beginning  of  the  constitutional 
term  of  the  additional  judge  and  is  not  extended  by  the  failure 
of  the  person  elected  to  qualify.  (Bush  v.  Nye,  6  Cal.  App. 
298,  92  Pac.  108.) 


Art.  VI,  §  10       CONSTITUTION  OF  1879.  254 

Justices  and  judges,  how  removed. 

See.  10.  Justices  of  the  supreme  court,  and  of  the 
district  courts  of  appeal,  and  judges  of  the  superior 
courts  may  be  removed  by  concurrent  resolution  of  both 
houses  of  the  legislature  adopted  by  a  two-thirds  vote 
of  each  house.  All  other  judicial  officers,  except  justices 
of  the  peace,  may  be  removed  by  the  senate  on  the  recom- 
mendation of  the  governor;  but  no  removal  shall  be  made 
by  virtue  of  this  section  unless  the  cause  thereof  be  en- 
tered on  the  journal,  nor  unless  the  party  complained  of 
has  been  served  with  a  copy  of  the  complaint  against  him 
and  shall  have  had  an  opportunity  of  being  heard  in  his 
defense.  On  the  question  of  removal  the  ayes  and  noes 
shall  be  entered  on  the  journal.  (Amendment  adopted 
November  8,  1904.) 

[ORIGINAL  SECTION.] 
Sec.  10.  Justices  of  the  supreme  court,  and  judges  of  the 
superior  courts,  may  be  removed  by  concurrent  resolution  of 
both  houses  of  the  legislature,  adopted  by  a  two-thirds  vote 
of  each  house.  All  other  judicial  officers,  except  justices  of 
the  peace,  may  be  removed  by  the  senate  on  the  recommenda- 
tion of  the  governor,  but  no  removal  shall  be  made  by  virtue 
of  this  section,  unless  the  cause  thereof  be  entered  on  the 
journal,  nor  unless  the  party  complained  of  has  been  served 
with  a  copy  of  the  complaint  against  him,  and  shall  have 
had  an  opportunity  of  being  heard  in  his  defense.  On  the 
question  of  removal,  the  ayes  and  noes  shall  be  entered  on 
the  journal. 


255  CONSTITUTION  OP  1879.       Art.  VI,  §  11 

Justices  of  the  peace,  provision  for. 

See.  11.  The  legislature  shall  determine  the  number 
of  each  of  the  inferior  courts  in  incorporated  cities 
or  towns,  and  in  townships,  counties,  or  cities  and 
counties,  according  to  the  population  thereof  and  the 
number  of  judges  or  justices  thereof,  and  shall  fix  hy 
law  the  powers,  duties  and  responsibilities  of  each  of 
such  courts  and  of  the  judges  or  justices  thereof;  pro- 
vided, such  powers  shall  not  in  any  case,  trench  upon 
the  jurisdiction  of  the  several  courts  of  record,  except 
that  the  legislature  shall  provide  that  said  courts  shall 
have  concurrent  jurisdiction  with  the  superior  courts 
in  cases  of  forcible  entry  and  detainer,  where  the  rental 
value  does  not  exceed  twenty-five  dollars  per  month, 
and  where  the  whole  amount  of  damages  claimed  does 
not  exceed  two  hundred  dollars,  and  in  cases  to  enforce 
and  foreclose  liens  on  personal  property  when  neither 
the  amount  of  liens  nor  the  value  of  the  property 
amounts  to  throe  hundred  dollars.  (Amendment  ap- 
proved October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  11.  The  legislature  shall  determine  the  number  of  justices 
of  the  peace  to  be  elected  in  townships,  incorporated  cities  and 
towns,  or  cities  and  counties,  and  shall  fix  by  law  the  powers, 
duties  and  responsibilities  of  justices  of  the  peace;  provided,  such 
powers  shall  not  in  any  case  trench  upon  the  jurisdiction  of  the 
several  courts  of  record,  except  that  Laid  justices  shall  have  con- 
current jurisdiction  with  the  superior  courts  in  cases  of  forcible 
entry  and  detainer,  where  the  rental  value  does  not  exceed  twenty- 


Art.  VI,  §  11        CONSTITUTION  OF  1879.  256 

five  dollars  per  mouth,  and  where  the  whole  amount  of  damages 
claimed  does  not  exceed  two  hundred  dollars,  and  in  cases  to 
enforce  and  foreclose  liens  on  personal  property  when  neither 
the  amount  of  the  liens  nor  the  value  of  the  property  amounts 
to  three  hundred  dollars. 

JUSTICES  OF  THE  PEACE— Creation  of.— A  justice's  court 
•cannot  be  created  by  a  freeholders'  charter.  (People  v.  Toal, 
85  Cal.  333,  24  Pac.  603;  People  v.  Sands,  102  Cal.  12,  36  Pac. 
404;  Milner  v.  Keibenstein,  85  Cal.  593,  24  Pac.  935;  Ex  parte 
Reilly,  85  Cal.  632,  24  Pac.  807;  Ex  parte  Giambonini,  117 
Cal.  573,  49  Pac.  732.) 

The  laws  relating  to  this  portion  of  the  judicial  system 
need  not  be  uniform  throughout  the  state.  (Kahn  v.  Sutro, 
114  Cal.  316,  46  Pac.  87,  33  L.  E.  A.  620.) 

The  justice's  court  of  Berkeley  was  not  superseded  by  the 
constitution.      (Ex  parte  Armstrong,  84  Cal.  655,  24  Pac.  598.) 

The  provision  of  the  County  Government  Act  authorizing  the 
supervisors  to  appoint  a  justice  of  the  peace  to  fill  a  vacancy 
is  not  in  conflict  with  this  section  making  them  elective. 
(People  v.  Chaves,  122  Cal.  134,  54  Pac.  596.) 

Justices  of  the  peace  are  judicial  officers  and  must  be  elected 
at  the  general  election,  (McGrew  v.  Mayor  etc.  of  San  Jose, 
55  Cal.  611.) 

Justices  of  the  peace  are  neither  city  nor  county  officers,  but 
form  part  of  the  judicial  system  of  the  state.  (People  v.  Cobb, 
133  Cal.  74;  Kahn  v.  Sutro,  114  Cal.  316,  46  Pac.  87,  65  Pac. 
325.) 

The  board  of  supervisors  of  a  county  may  by  ordinance 
abolifeh  two  contiguous  judicial  townships  having  a  justice's 
court  in  each,  and  may  establish  one  new  consolidated  town- 
ship, comprising  the  territory  of  both  of  them.  (Proulx  v. 
Graves,  143  Cal.  243,  76  Pac.  1025.) 

The  constitutional  provision  as  to  justice's  courts  operates 
specifically  only  by  means  of  such  local  legislation  as  the  state 
legislature  has  delegated  to  the  supervisors  under  general  laws, 
and  automatically  establishes  a  justice's  court  in  each  town- 
ship established  by  the  local  body  which  continues  while  the 
township  exists,  and  is  merged  in  another  justice's  court  when 
two  townships  are  merged  into  one.  (Proulx  v.  Graves,  143 
Cal.  243,  76  Pac.  1025.) 


257  CONSTITUTION  OF  1879.       Art.  VI,  §  11 

Justices  of  the  peace  are  part  of  the  constitutional  judicial 
system  of  the  state.  (Graham  v.  Fresno,  151  Cal.  465,  91  Pac. 
147.) 

The  legislature,  in  creating  justices'  courts,  is  justified  in 
classifying  municipalities  in  accordance  with  population.  (In 
re  Johnson,  6  Cal.  App.  734,  93  Pac.  199.) 

As  to  whether  it  is  necessary  to  classify  justices'  courts  for 
the  purpose  of  establishing  them,  as  distinguished  from  pre- 
scribing their  duties  of  jurisdiction,  query  I  (In  re  Johnson, 
6   Cal.  App.   734,  93  Pac.   199.) 

Jurisdiction. — A  justice's  court  is  a  court  of  limited  and 
inferior  jurisdiction,  and  its  jurisdiction  must  be  shown  affirm- 
atively by  a  party  relying  upon  or  claiming  any  right  or  title 
under  its  judgments.  (Eltzroth  v.  Ryan,  89  Cal.  135,  26 
Pac.  647;  Jones  v.  Justice's  Court,  97  Cal.  523,  32  Pac.  575; 
Keybers  v.  McComber,  67  Cal.  395,  7  Pac.  838.) 

There  can  be  no  concurrent  jurisdiction  of  any  special  pro- 
ceeding other  than  the  two  mentioned  in  this  section.  (Edsall 
V.  Short,  122  Cal.  533,  55  Pac.  327.) 

No  power  can  be  conferred  upon  justices  of  the  peace  which 
has  been  by  the  constitution  conferred  upon  other  courts. 
(Zander  v.  Coe,  5  Cal.  230;  Small  v.  Gwiun,  6  Cal.  447.) 

But  where  the  jurisdiction  conferred  by  the  constitution  is 
not  exclusive,  the  same  may  be  conferred  upon  justices'  courts. 
(People  V.  Fowler,  9  Cal.  85.) 

Where  the  justice  of  the  peace  has  no  jurisdiction,  the 
judgment  should  bo  reversed  and  the  cause  dismissed.  (Ford 
V.  Smith,  5  Cal.  331.) 

It  has  been  held  that  an  appeal  to  the  superior  court  upon 
questions  of  law  and  fact  does  not  enlarge  the  jurisdiction  of 
the  justice's  court,  or  confer  jurisdiction  upon  the  superior 
court,  if  the  justice's  court  had  no  jurisdiction.  (Ballerino  v. 
Bigelow,  90  Cal.  500,  27  Pac.  372.  But  see  De  Jarnatt  v.  Mar- 
quez,  132  Cal.  700,  64  Pac.  1090;  Hart  v.  Carnall-Hopkins  Co., 
103  Cal.  132,  37  Pac.  196.) 

Where  the  verified  answer  in  an  action  in  a  police  court  dis- 
closes that  tho  action  involves  the  legality  of  a  tax,  but,  not- 
withstanding, the  court  proceeds  with  the  case,  and  an  appeal 
is  taken  to  the  superior  court  on  questions  of  law  and  fact, 
Constitution — 17 


Art  VI,  §  11       CONSTITUTION  OF  1879.  258 

the  superior  court  acquires  jurisdiction — not  appellate,  but 
original.     (Santa  Barbara  v.  Eldrcd,  95  Cal.  378,  30  Pac.  562.) 

Tlie  parties  to  an  action  in  the  justice's  court  cannot  confer 
jurisdiction  upon  the  court  of  an  action  involving  the  title  or 
possession  of  real  estate  by  failing  to  plead  such  lack  of  juris- 
diction by  verified  answer.  (King  v.  Kutner-Goldstein  Co., 
135  Cal.  65,  67  Pac.  10.) 

Cases  at  law. — A  justice's  court  hai  no  jurisdiction  of  an 
action  upon  a  promissory  note,  where  the  amount  of  the  prin- 
cipal sum  and  attorneys'  fees  demanded  exceeds  three  hundred 
dollars.  (De  Jarnatt  v,  Marquez,  127  Cal.  558,  78  Am.  St. 
Eep.  90,  60  Pac.  45.) 

The  justice's  court  has  jurisdiction  of  an  action  upon  a 
money  demand  of  less  than  three  hundred  dollars  for  improving 
a  street  under  a  private  contract,  where  there  is  nothing  in 
the  pleadings  to  show  that  the  action  involves  the  title  or 
possession  of  real  estate.  (Eaisch  v.  Sausalito  etc.  Co.,  131 
Cal.  215,  63  Pac.  346.) 

Where  several  suits  to  recover  the  same  property,  the  value 
of  which  is  less  than  three  hundred  dollars,  are  consolidated, 
the  justice's  court  has  jurisdiction  of  the  action  as  consoli- 
dated.     (Cariaga  v.  Dryden,  29  Cal.  307.) 

In  an  action  for  the  recovery  of  specific  property  in  a  jus- 
tice's court,  the  standard  of  jurisdiction  is  "the  value  of  the 
property,"  and  it  would  seem  that  the  justice's  jurisdiction  for 
the  incidental  damages  for  detention  is  unlimited;  and  at  all 
events,  the  demand  for  damages  cannot  oust  the  justice  of 
jurisdiction,  if  the  value  of  the  property  is  less  than  three 
hundred  dollars.  (Astell  v,  Phillippi,  55  Cal.  2G5;  Wratteu  v. 
Wilson,  22  Cal.  465.) 

A  justice's  court  has  no  jurisdiction  of  an  action  for  the 
recovery  of  property  alleged  to  exceed  three  hundred  dollars 
in  value,  although  the  complaint  prays  judgment  for  a  less 
sum  in  case  possession  cannot  be  had.  (Shealor  v.  Superior 
Court,  70  Cal.  564,  11  Pac.  653.) 

A  justice's  court  has  no  jurisdiction  of  a  counterclaim  ex- 
ceeding' the  jurisdictional  amount.  (Malson  v.  Vaughn,  23  Cal. 
61;  Maifield  t.  Johnson,  30  Cal.  545.) 

The  justice's  court  has  jurisdiction  of  an  action  for  the 
recovery  of  property  of  the  value  of  two  hundred  and  fifty 
dollars    and   fifty    dollars    damages,    where    the    plaintiflE    only 


259  CONSTITUTION  OF  1879.       Art.  VI,  §  11 

prays  for  two  hundred  and  ninety-nine  dollars,  since  both  the 
value  of  the  property  and  the  demand  are  less  than  three  hun- 
dred dollars.     (Sanborn  v.  Superior  Court,  60   Cal.  425.) 

Forcible  entry  and  detainer. — The  words  "forcible  entry  and 
detainer"  include  unlawful  detainer  after  the  expiration  of  the 
term.  (Caulfield  v.  Stevens,  28  Cal.  118;  Brummagim  v.  Spen- 
cer, 29  Cal.  661;  Mecham  v.  McKay,  37  Cal.  154;  Norblett  v. 
Farwell,  38  Cal.  155;  Stoppelkamp  v.  Mangeot,  42  Cal.  316; 
Ivory  V.  Brown,  137  Cal.  603,  70  Pac.  657.) 

The  actual  rental  value,  and  not  the  value  alleged  in  the 
complaint,  is  the  test  of  jurisdiction.  (Ballerino  v.  Bigelow, 
90  Cal.  500,  27  Pac.  372.) 

The  justice's  court  has  no  jurisdiction  of  an  action  of  un- 
lawful detainer,  when  the  amount  of  rent  due  is  one  hundred 
and  twenty  dollars,  and  the  plaintiff  asks  to  have  it  trebled, 
or  of  any  such  case  when  the  amount  of  the  rent  when  trebled 
exceeds  two  hundred  dollars.  (Hoban  v.  Eyan,  130  Cal.  96, 
62  Pac.  296.) 

Real  property. — Where  the  proceedings  do  not  show  on  their 
face  that  the^  title  or  possession  of  real  property  is  involved, 
but  only  that  it  may  contingently  become  involved,  the  justice 
has  jurisdiction  to  try  the  case,  unless  it  appears  that  the  pre- 
dicted contingency  actually  occurred  during  the  trial.  (Hart 
V.  Carnall-Hopkins  Co.,  103  Cal.  132,  37  Pac.  196.) 

Where  a  case  involving  the  title  or  possession  of  real  prop- 
erty is  appealed  from  the  justice's  court  on  questions  of  law 
and  fact,  the  superior  court  has  jurisdiction  to  determine  the 
case,  and  an  appeal  may  be  taken  to  the  supreme  court  in  the 
same  manner  as  if  the  action  had  been  originally  brought  in 
the  superior  court,  or  had  been  transferred  to  it  by  the  jus- 
tice.    (Hart  V.  Carnall  Hopkins  Co.,  103  Cal.  132,  37  Pac.  196.) 

A  complaint  to  recover  a  sum  paid  upon  a  contract  to  locate 
the  plaintiff  on  certain  government  land  does  not  necessarily 
involve  the  title  or  possession  of  real  property.  (Hart  v.  Car- 
nall-Hopkins Co.,   103   Cal.   132,  37   Pac.   196.) 

A  justice  of  the  peace  has  no  jurisdiction  to  try  a  cause  for 
an  injury  arising  out  of  a  diversion  of  water,  (Hill  v.  New- 
man, 5  Cal.  445,  63  Am.  Dec.  140.) 

If  the  defendant's  verified  answer  raises  a  question  of  title 
to  real  property,  the  cause  must  be  transferred.  (Doherty  v. 
Thayer,  31  Cal.  140.) 


Art.  VI,  §  12       CONSTITUTION  OP  1879.  260 

An  action  for  trespass  on  real  property  is  within  the  juris- 
diction of  a  justice  of  the  peace,  when  the  damages  sued  for 
are  less  than  three  hundred  dollars.  (Pollock  v.  Cummings, 
38  Cal.  683.) 

Fines,  etc. — An  act  requiring  actions  to  recover  a  penalty 
imposed  upon  a  railroad  company,  for  charging  a  passenger 
an  excess  of  fare,  to  be  brought  in  the  justice's  court,  is  valid. 
(Reed  v.  Omnibus  R.  R.  Co.,  33  Cal.  212;  Smith  v.  Omnibus 
R.  R.  Co.,  36  Cal.  281.) 

The  justice's  court  has  jurisdiction  of  an  action  to  recover 
two  hundred  dollars  for  a  forfeiture  for  issuing  a  certificate 
of  relief  in  violation  of  section  596  of  the  Political  Code,  the 
same  being  a  penalty  given  by  statute,  and  not  a  municipal 
fine.     (Thomas  v.  Justice's  Court,   80  Cal.  40,  22  Pac.  80.) 

If,  in  an  action  to  recover  a  money  judgment  for  taxes,  an 
answer  is  filed  which  puts  in  issue  the  legality  of  the  tax,  the 
justice  of  the  peace  is  ousted  of  jurisdiction.  (People  v.  Mier, 
24  Cal.  61.) 

Misdemeanors. — The  jurisdiction  of  justices'  courts  on  mis- 
demeanors is  exclusive  of  the  jurisdiction  of  the  superior  court. 
(People  v.  Palermo  L.  &  W,  Co.,  4  Cal.  App.  717,  89  Pac.  723.) 

Miscellaneous. — A  statute  conferring  equitable  jurisdiction 
upon  justices'  courts  is  unconstitutional.  (Young  v.  Wright, 
52  Cal.  407;   Sutherland  v.  Sweem,  53   Cal.  48.) 

The  county  court  had  jurisdiction  to  try  an  indictment  for 
misdemeanor,  the  jurisdiction  of  the  justice  of  the  peace  being 
exclusive  as  to  misdemeanors  where  no  indictments  had  been 
found.     (Ex  parte  McCarthy,  53  Cal.  412.) 

Courts  of  record. 

Sec.  12.  The  supreme  court,  the  district  courts  of  ap- 
peal, the  superior  courts,  and  such  other  courts  as  the 
legislature  shall  prescribe,  shall  be  courts  of  record. 
(Amendment  adopted  November  8,  1904.)^ 


261  CONSTITUTION  OP  1879.     Art.  VI,  §§  13, 14 

[ORIGINAL   SECTION.] 
Sec.  12.     The   supreme   court,   the   superior   courts,   and    such 
other  courts  as  the  legislature  shall  prescribe,  shall   be   courts 
of  record. 

Jurisdiction  of  inferior  courts  to  be  fixed  by  legislature. 

Sec.  13.  The  legislature  shall  fix  by  law  the  jurisdic- 
tion of  any  inferior  courts  which  may  be  established  in 
pursuance  of  section  one  of  this  article,  and  shall  fix  by 
law  the  powers,  duties,  and  responsibilities  of  the  judges 
thereof. 

INFERIOR  COURTS. — The  jurisdiction,  powers,  duties  and 
responsibilities  of  inferior  courts  cannot  be  fixed  by  a  free- 
holders' charter.  (People  v.  Toal,  85  Cal.  333,  24  Pac.  603; 
Ex  parte  Reilly,  85  Cal.  632,  24  Pac.  807;  People  v.  Sands,  102 
Cal.  12,  36  Pac.  404;  Milner  v.  Reibenstein,  85  Cal.  593,  24 
Pac.  935;  Ex  parte  Giambonini,  117  Cal.  573,  49  Pac.  732.) 

The  municipal  superior  court  of  San  Francisco  had  no  author- 
ity to  issue  writs  of  quo  warranto,  it  being  an  inferior  court, 
and  the  jurisdiction  not  being  expressly  conferred  by  statute. 
(People  V.  Gillespie,  1  Cal.  342.) 

As  to  the  jurisdiction  of  the  recorder's  court,  see  Ex  parte 
Soto,  88  Cal.  624,  26  Pac.  530. 

The  legislature  may  create  a  recorder's  court  with  a  dual 
jurisdiction — being  a  recorder  as  to  some  matters,  and  a  justice 
of  the  peace  as  to  others.  (Prince  v.  Fresno,  88  Cal.  407,  26 
Pac.   606.) 

The  act  of  1889,  creating  the  police  court  of  the  city  and 
county  of  San  Francisco,  held  constitutional.  (Ex  parte  Lloyd, 
78  Cal.  421,  20  Pac.  872.) 

Clerks  of  courts  and  court  commissioners. 

Sec.  14.  The  county  clerks  shall  be  ex-officio  clerks 
of  the  courts  of  record  in  and  for  their  respective  conn- 


Art.  VI,  §  15        CONSTITUTION  OP  1879.  262 

tics  or  cities  and  counties.  The  legislature  may  also 
provide  for  the  appointment,  by  the  several  superior 
courts,  of  one  or  more  commissioners  in  their  respective 
counties,  or  cities  and  counties,  with  authority  to  per- 
form chamber  business  of  the  judges  of  the  superior 
courts,  to  take  depositions,  and  to  perform  such  other 
business  connected  with  the  administration  of  justice  as 
may  be  prescribed  by  law.  (Amendment  approved 
October  10,  1911.) 

[ORIGINAL  SECTIOK] 
Sec.  14.  The  legislature  shall  provide  for  the  election  of  a 
clerk  of  the  supreme  court  and  shall  fix  by  law  his  duties 
and  compensation,  which  compensation  shall  not  be  increased 
or  diminished  during  the  term  for  which  he  shall  have  been 
elected.  The  county  clerks  shall  be  ex  officio  clerks  of  the 
courts  of  record  in  and  for  their  respective  counties,  or  cities 
and  counties.  The  legislature  may  also  provide  for  the  appoint- 
ment, by  the  several  superior  courts,  of  one  or  more  commis- 
sioners in  their  respective  counties,  or  cities  and  counties,  with 
authority  to  perform  chamber  business  of  the  judges  of  the 
superior  courts,  to  take  depositions,  and  perform  such  other 
business  connected  with  the  administration  of  justice  as  may 
bti  prescribed  by  law. 

Judicial  officers  not  to  receive  fees  and  perquisites. 

Sec.  15.  No  judicial  officer,  except  court  commission- 
ers, shall  receive  to  his  own  use  any  fees  or  perquisites 
of  office;  provided,  that  justices  of  the  peace  now  hold- 
ing office  shall  receive  to  their  own  use  such  fees  as  are 
now  allowed  by  law  during  the  terms  for  which  they 


263  CONSTITUTION  OF  1879.     Art.  VI,  §§  16, 17 

have  been  elected.     (Amendment  approved  October  10, 
1911.) 

[ORIGINAL  SECTION.] 
Sec.  15.     No    judicial    ofBcer,    except    justices    of    the    peace 
and  court  commissioners,  shall  receive  to  his  own  use  any  fees 
or  perquisites  of  office. 

FEES  OF  JUDICIAL  OFFICERS.— The  words  "justices  of 
the  peace"  as  used  in  this  section  include  those,  by  whatever 
name  they  are  called,  who  are  invested  with  the  duties  assigned 
by  the  law  to  those  officers,  and  include  a  recorder  of  a  city. 
(Curtis  V.  Sacramento,  13  Cal.  290.) 

Supreme  court  opinions  to  be  published. 

Sec.  16.  The  legislature  shall  provide  for  the  speedy 
publication  of  such  opinions  of  the  supreme  court  and 
of  the  district  courts  of  appeal  as  the  supreme  court  may 
deem  expedient,  and  all  opinions  shall  be  free  for  pub- 
lication by  any  person.  (Amendment  adopted  November 
8,  1904.) 

[OEIGINAL   SECTION.] 

Sec.  16.  The  legislature  shall  provide  for  the  speedy  publi- 
cation of  such  opinions  of  the  supreme  court  as  it  may  deem 
expedient,  and  all  opinions  shall  be  free  for  publication  by  any 
person. 

Compensation  of  justices  and  judges. 

Sec.  17.  The  justices  of  the  supreme  court  and  of  the 
district  courts  of  appeal,  and  the  judges  of  the  superior 
courts,  shall  severally,  at  stated  times  during  their  con- 
tinuance in  office,  receive  for  their  service  such  com- 
pensation as  is  or  shall  be  provided  by  law.     The  salaries 


Art.  VI,  §  17        CONSTITUTION  OP  1879.  264 

of  the  judges  of  the  superior  court,  in  all  counties  having 
but  one  judge,  and  in  all  counties  in  which  the  terms  of 
the  judges  of  the  superior  court  expire  at  the  same  time, 
shall  not  hereafter  be  increased  or  diminished  after  their 
election,  nor  during  the  term  for  which  they  shall  have 
been  elected.  Upon  the  adoption  of  this  amendment  the 
salaries  then  established  by  law  shall  be  paid  uniformly 
to  the  justices  and  judges  then  in  office.  The  salaries 
of  the  justices  of  the  supreme  court  and  of  the  district 
courts  of  appeal  shall  be  paid  by  the  state.  One-half  of 
the  salary  of  each  superior  court  judge  shall  be  paid  by 
the  state ;  and  the  other  half  thereof  shall  be  paid  by  the 
county  for  which  he  is  elected.  On  and  after  the  first 
day  of  January,  A.  D.  one  thousand  nine  hundred  and 
seven,  the  justices  of  the  supreme  court  shall  each  receive 
an  annual  salary  of  eight  thousand  dollars,  and  the  jus- 
tices of  the  several  district  courts  of  appeal  shall  each 
receive  an  annual  salary  of  seven  thousand  dollars;  the 
said  salaries  to  be  payable  monthly.  (Amendment 
adopted  November  6,  1906.) 

[AMENDMENT  OF  1904.] 
Sec.  17.  The  justices  of  the  supreme  court  and  of  the  dis- 
trict courts  of  appeal,  and  the  judges  of  the  superior  court 
shall  severally,  at  stated  times  during  their  continuance  in 
office,  receive  for  their  services  such  compensation  as  is  or 
shall  be  provided  by  law,  which  shall  not  be  increased  or 
diminished  after  their  election,  nor  during  the  term  for  which 
they  shall  have  been  elected.  The  salaries  of  the  justices  of 
the   supreme   court   and   of   the   district   courts   of   appeal   shall 


265  CONSTITUTION  OF  1879.        Art.  VI,  §  17 

be  paid  by  the  state.  One-half  of  the  salary  of  each  superior 
court  judge  shall  be  paid  by  the  state;  the  other  half  thereof 
shall  be  paid  by  the  county  for  which  he  is  elected.  (Amend- 
ment adopted  November  8,  1904.) 

[ORIGINAL  SECTION.] 
Sec.  17.  The  justices  of  the  supreme  court  and  judges  of 
the  superior  court  shall  severally,  at  stated  times  during  their 
continuance  in  oflSce,  receive  for  their  services  a  compensation 
which  shall  not  be  increased  or  diminished  after  their  election, 
nor  during  the  term  for  which  they  shall  have  been  elected. 
The  salaries  of  the  justices  of  the  supreme  court  shall  be  paid 
by  the  state.  One-half  of  the  salary  of  each  superior  court 
judge  shall  be  paid  by  the  state;  the  other  half  thereof  shall 
be  paid  by  the  county  for  which  he  is  elected.  During  the  term 
of  the  first  judges  elected  under  this  constitution,  the  annual 
salaries  of  the  justices  of  the  supreme  court  shall  be  six  thou- 
sand dollars  each.  Until  otherwise  changed  by  the  legislature, 
the  superior  court  judges  shall  receive  an  annual  salary  of 
three  thousand  dollars  each,  payable  monthly,  except  the  judges 
of  the  city  and  county  of  San  Francisco,  and  the  counties  of 
Alameda,  San  Joaquin,  Los  Angeles,  Santa  Clara,  Yuba  and 
Sutter  combined,  Sacramento,  Butte,  Nevada,  and  Sonoma,  which 
shall  receive  four  thousand  dollars  each. 

SALARIES  OF  JUDICIAL  OFFICERS.— This  provision  does 
not  exempt  judges  from  the  necessity  of  an  appropriation  for 
their  salaries  by  the  legislature.  (Myers  v.  English,  9  Cal. 
341.) 

The  law  providing  for  an  increase  of  salary  of  justices  of 
the  supreme  court,  though  an  existing  statute,  is  not  in  force, 
because  there  is  no  subject  upon  which  it  can  constitutionally 
operate  until  the  expiration  of  the  terms  of  the  present  jus- 
tices.    (Harrison  v.  Colgan,  148  Cal.  G9,  82  Pac.  674.) 

The  terms  of  justices  of  the  district  court  of  appeal  began 
to  run  as  soon  as  that  office  was  created,  and  not  upon  their 


Art.  VI,  §§  18, 19     CONSTITUTION  OF  1879.  266 

appointment,  and  any  increase  in  their  salary  cannot  affect 
persons  appointed  for  that  term.  (Harrison  v.  Colgan,  148  Cal. 
69,  82  Pac.  674.) 

An  act  which  is  approved  before  the  beginning  of  a  term, 
but  does  not  go  into  effect  until  after  the  term  commences, 
cannot  affect  the  salary  of  officers  during  that  term.  (Harri- 
son V.  Colgan,  148  Cal.  69,  82  Pac.  674.) 

Justices  and  judges  ineligible  to  other  offices. 

Sec.  18.  The  judges  of  the  supreme  court,  and  the 
district  courts  of  appeal,  and  the  judges  of  the  superior 
courts  shall  be  ineligible  to  any  other  office  or  public 
employment  than  a  judicial  office  or  employment  during 
the  term  for  which  they  shall  have  been  elected. 
(Amendment  adopted  November  8,  1904.) 

[ORIGINAL  SECTION.] 
Sec.  18.     The   justices   of   the   supreme   court   and   judges   of 
the   superior   courts   shall   be   ineligible   to   any   other   office    or 
public  employment  than  a  judicial  office  or  employment  during 
the  term  for  which  they  shall  have  been  elected. 

Charges  to  juries. 

Sec.  19.  Judges  shall  not  charge  juries  with  respect 
to  matters  of  fact,  but  may  state  the  testimony  and  de- 
clare the  law. 

INSTRUCTIONS. — A  mere  statement  of  the  evidence  is  not 
in  violation  of  this  section.  (People  v.  Christensen,  85  Cal. 
568,  24  Pac.  888.) 

It  is  error  for  the  judge  to  state  his  impressions  of  the 
substance  and  effect  of  the  testimony  without  stating  its  con- 


267  coxsTiTUTiox  OF  1879.        Art.  YI,  §  19 

tents,  and  to  tell  the  jury  that  other  witnesses  corroborate  cer- 
tain statements  of  the  prosecuting  witness.  (People  v.  Gordon, 
88  Cal.  422,   26   Pac.  502.) 

An  instruction  that  "the  testimony  in  the  case  shows"  cer- 
tain facts  is  violative  of  this  section.  (People  v.  Casey,  65 
Cal.  260,  3  Pac.  874.) 

A  charge  which  assumes  as  proven  a  fact  in  issue  is  errone- 
ous. (Caldwell  v.  Center,  30  Cal.  539,  89  Am.  Dec.  131; 
People  V.  Dick,  32  Cal.  213.) 

As  to  the  effect  of  this  provision  on  section  2061  of  the 
Code  of  Civil  Procedure,  see  People  v.  Paulsell,  115  Cal.  6, 
14,  46  Pac.  734. 

Improper  instructions. — The  following  particular  instructions 
have  been  held  to  violate  this  section:  An  instruction  that  pos- 
session of  property  recently  stolen  is  a  strong  circumstance 
of  guilt  (People  v.  Cline,  74  Cal.  575,  16  Pac.  391;  People 
V.  Titherington,  59  Cal.  598;  People  v.  Ah  Sing,  59  Cal.  4U0); 
an  instruction  that  the  recent  possession  of  stolen  goods  raises 
a  presumption  that  the  possessor  is  the  thief  (People  v.  Gutier- 
rez, 74  Cal.  81,  15  Pac.  444;  People  v.  Mitchell,  55  Cal.  236); 
an  instruction  that  the  flight  of  the  defendant  is  strong  pre- 
sumptive evidence  of  his  guilt  (People  v.  "Wong  Ah  Ngow,  54 
Cal.  151,  35  Am.  Rep.  69);  a  charge  as  to  the  relative  value 
of  direct  and  circumstantial  evidence  (People  v.  Verenes- 
eneckockockhoff,  129  Cal.  497,  58  Pac.  156,  62  Pac.  Ill;  People 
v.  O'Brien,  130  Cal.  1,  62  Pac.  297);  an  instruction  that  "it 
may  be  impossible  to  show  or  establish  a  motive,  for  the 
reason  that  we  cannot  fathom  the  mind  of  the  accused  on  trial, 
and  ascertain  if  there  is  not  a  hidden  desire  of  vengeance  or 
some  passion  to  be  gratified"  (People  v.  Vereneseneckockock- 
hoff,  129  Cal.  497,  58  Pac.  156,  62  Pac.  Ill;  People  v.  Botkin,  132 
Cal.  231,  84  Am.  St.  Eep.  39,  64  Pac.  2S6);  an  instruction 
that  certain  facts  are  proper  to  be  taken  into  consideration  by 
the  jury,  as  throwing  doubt  upon  a  certain  controverted  fact 
(People  V.  Lee,  119  Cal.  84,  51  Pac.  22);  an  instruction  that  if 
the  jury  are  satisfied  that  an  attempt  to  commit  rape  was 
made,  the  evidence  must  also  satisfy  them  that  it  was  accom- 
plished, and  that  in  the  opinion  of  the  judge  upon  the  evidence 


Art.  VI,  §  19        CONSTITUTION  OF  1879.  268 

there  could  be  no  conviction  of  an  attempt  (People  v.  Baldwin, 
117  Cal.  244,  49  Pac.  1S6);  an  instruction  that  if  the  prose- 
cutrix committed  lewd  and  immodest  acts,  she  was  not  of  chaste 
character  (People  v.  Samonset,  97  Cal.  448,  32  Pac.  520);  an 
instruction  that  the  testimony  of  an  accomplice  ought  to  be 
viewed  with  distrust,  and  the  evidence  of  the  oral  admissions 
of  a  party  with  caution  (People  v.  O'Brien,  96  Cal.  171,  31 
Pac.  45;  Goss  v.  Steiger  Terra  Cotta  Works,  148  Cal.  155,  82 
Pac.  681);  an  instruction  that,  if  the  testimony  is  believed, 
it  would  undoubtedly  make  out  a  case  of  murder  in  the  first 
degree,  and  that  it  tended  to  show  that  the  murder  was  willful 
(People  V.  Chew  Sing  Wing,  88  Cal.  268,  25  Pac.  1099);  an 
instruction  that,  the  testimony  of  the  prosecuting  witness  not 
being  disputed,  the  jury  were  bound  to  presume  it  to  be  true, 
where  there  is  a  conflict  as  to  the  facts  testified  to  by  such 
witness  (People  v,  Murray,  86  Cal.  31,  24  Pac.  802);  an  in- 
struction virtually  assuming  the  testimony  of  a  party  to  a 
material  fact  to  be  true  (Vulicevich  v.  Skinner,  77  Cal.  239,  19 
Pac.  424);  an  instruction  that  unless  the  dam  had  gates  suffi- 
cient for  certain  named  purposes,  it  was  insufficiently  and 
negligently  constructed  (Weiderkind  v.  Tuolumne  County  Water 
Co.,  65  Cal.  431,  4  Pac.  415);  an  instruction  that  "under  the 
case  and  proofs  as  here  made  no  presumption  of  negligence 
arises  against  the  defendant  from  the  mere  fact  that  an  acci- 
dent has  occurred"  (Sullivan  v.  Market  St.  Ey.  Co.,  136  Cal. 
479,  69  Pac.  143);  an  instruction  that  the  condemnation  sought 
is  not  necessary  (Santa  Ana  v.  Gildmacher,  133  Cal.  395,  65 
Pac.  883) ;  an  instruction  that  the  testimony  of  an  accomplice 
ought  to  be  viewed  with  distrust  and  the  evidence  of  the  oral 
admission  of  a  party  with  caution  (People  v.  Wardrip,  141  Cal. 
229,  74  Pac.  744) ;  an  instruction  that  if  the  jury  believe  a 
particular  witness  they  shall  render  a  verdict  accordingly 
(People  V.  Barker,  137  Cal.  557,  70  Pac.  617);  an  instruction 
assuming  that  there  may  be  an  inference  or  definite  presump- 
tion of  guilt  of  the  crime  of  burglary  from  the  mere  unex- 
plained fact  of  possession  of  stolen  property  (People  v.  Boxer, 
137  Cal.  562,  70  Pac.  671.  See,  also,  Kerrigan  v.  Market  Street 
By.  Co.,  138  Cal.  506,  71  Pac.  621);  an  instruction  that  to  run 
an  engine  at  a  particular  rate  of  speed  is  negligence  (Wyckoflf 
V.  Southern  Pac.  Co.,  4  Cal.  App.  94,  87  Pac.  203);  an  instruc- 
tion that  there  was  no  evidence  of  any  conspiracy  (People  v. 


269  CONSTITUTION  OF  1879.        Art.  VI,  §  19 

King,  4  Cal.  App.  213,  87  Pac.  400);  an  instruction  that  it  is 
negligence  for  a  person  to  fail  to  have  a  trench  (Eyan  v.  Oak- 
land Gas  etc.  Co.,  10  Cal.  App.  484,  102  Pac.  558);  an  instruction 
that  evidence  of  previous  good  character  is  to  be  considered 
"with  great  caution"  (People  v.  Piner,  11  Cal.  App.  542,  105 
Pac.  780) ;  an  instruction  that  a  person's  confession  is  always 
admitted  against  him,  for  the  law  presumes  that  a  person 
will  not  say  anything  untrue  against  himself  or  his  own  inter- 
ests (People  V.  Piner,  11  Cal.  App.  542,  105  Pac.  780);  an 
instruction  that  the  absence  of  motive  is  a  circumstance  in 
favor  of  the  accused  (People  v.  McGee,  14  Cal.  App.  99,  111 
Pac.  264);  an  instruction  that  a  certain  fact  constitutes  negli- 
gence (Manning  v.  App.  Con.  Gold  M.  Co.,  149  Cal.  35,  84  Pac. 
657);  an  instruction  that  it  is  not  negligence  on  the  part  of  a 
motorman  to  assume  that  a  person  will  not  attempt  to  cross 
the  track  in  front  of  an  approaching  car,  which  is  so  near  as 
to  render  a  collision  probable  (Bresee  v.  Los  Angeles  Traction 
Co.,  149  Cal.  131,  85  Pac.  152,  5  L.  R.  A.,  N.  S.,  1059). 

Proper  instructions. — On  the  other  hand,  the  following  in- 
structions have  been  held  not  to  violate  this  provision:  An 
instruction  that  the  jury  may  consider  the  circumstance  that 
the  defendant  fled  from  arrest  (People  v.  Ross,  115  Cal.  233, 
46  Pac.  1059);  ail  instruction  that  there  is  no  evidence  which 
would  reduce  the  crime  charged  to  manslaughter  (People  v. 
King,  27  Cal.  507,  87  Am.  Dec.  95);  an  instruction  that  there 
was  evidence  tending  to  show  that  the  watch  was  taken 
near  the  door,  and  that  the  defendant  testified  that  he  picked 
it  up  near  the  counter  (People  v.  Perry,  65  Cal.  568,  4  Pac. 
572);  an  instruction  that  possession  of  stolen  goods  soon  after 
they  were  stolen,  unless  satisfactorily  explained,  is  a  circum- 
stance to  be  considered  in  connection  with  other  suspicious 
facts,  in  determining  the  guilt  of  the  defendant  (People  v. 
Hannon,  85  Cal.  374,  24  Pac.  706);  an  instruction  that  the 
jury  might  consider  the  relation  of  the  defendant  to  the  ease 
in  considering  his  testimony,  the  consequences  to  him  resulting 
from  the  verdict,  etc.  (People  v.  O'Brien,  96  Cal.  171,  31  Pac. 
45);  an  instruction  that  a  ratification  may  be  found  from  an 
unreasonable  delay  to  object  (Hill  v.  Finigan,  77  Cal.  267,  11 
Am.  St.  Rep.  279,  19  Pac.  494);  an  instruction  as  to  the  credi- 


Art.  VI,  §§  20,  21     CONSTITUTION  OF  1879.  270 

bility  of  -witnesses  based  on  section  1847  of  the  Corle  of  Civil 
Procedure  (People  v.  Matezuski,  11  Cal.  App.  465,  105  Pac. 
425). 

Style  of  process. 

Sec.  20.  The  st^'le  of  all  process  shall  be,  "The  People 
of  the  State  of  California,"  and  all  prosecutions  shall 
be  conducted  in  their  name  and  by  their  authority. 

PROCESS. — The  word  "process"  as  used  in  this  section  does 
not  apply  to  the  warrants  by  which  prisoners  are  held  and 
committed  to  the  state  prison  after  conviction.  (Ex  parte 
Ahern,  103  Cal.  412,  37  Pac.  390.) 

The  notice  to  be  given  to  creditors  on  filing  a  petition  in 
insolvency  is  not  process;  and  even  if  it  were  process,  the  fact 
that  it  does  not  run  in  the  name  of  the  people  of  the  state 
of  California  is  not  a  fatal  error  going  to  the  jurisdiction. 
(Brewster  v.  Ludekins,  19  Cal.  162.) 

An  action  to  punish  a  defendant  for  the  violation  of  an 
ordinance  is  a  criminal  action,  and  must  be  prosecuted  in  the 
name  of  the  people.      (Santa  Barbara  v.  Sherman,  61  Cal.  57.) 

An  act  authorizing  the  removal  of  a  board  of  supervisors 
from  office  for  delay  in  fixing  water  rates  "at  the  suit  of  any 
interested  party"  is  in  conflict  with  this  section.  (Fitch  v. 
Supervisors,   122   Cal.   285,  54  Pac.   901.) 

An  order  of  arrest  in  a  civil  action  is  not  "process"  within 
the  meaning  of  this  section.     (Dusy  v.  Helm,  59  Cal.  188.) 

Reporter  of  supreme  court  decisions. 

Sec.  21.  The  supreme  court  shall  appoint  a  clerk  of 
the  supreme  court;  provided,  however,  that  any  person 
elected  to  the  office  of  clerk  of  the  supreme  court  before 
the  adoption  hereof,  shall  continue  to  hold  such  office 
until  the  expiration  of  the  term  for  which  lie  may  have 
been  elected.  Said  court  ma}-  also  appoint  a  reporter 
and  not  more  than  three  assistant  reporters  of  the  de- 


271  CONSTITUTION  OP  1879.       Art.  VI,  §  21 

cisions  of  the  supreme  court  and  of  the  district  courts 
of  appeal.  Each  of  the  district  courts  of  appeal  shall 
appoint  its  own  clerk.  All  the  officers  herein  mentioned 
shall  hold  office  and  be  removable  at  the  pleasure  of  the 
courts  by  which  they  are  severally  appointed,  and  they 
shall  receive  such  compensation  as  shall  be  prescribed 
by  law,  and  discharge  such  duties  as  shall  be  prescribed 
by  law,  or  by  the  rules  or  orders  of  the  courts  by  which 
they  are  severally  appointed.  (Amendment  approved 
October  10,  1911.) 

[AMENDMENT  OF  1904.] 
Sec.  21.  The  supreme  court  may  appoint  a  reporter  and  not 
more  than  three  assistant  reporters  of  the  decisions  of  the 
supreme  court  and  of  the  district  courts  of  appeal.  Each  of 
the  district  courts  of  appeal  shall  appoint  its  own  clerk.  All 
of  the  oflBcers  herein  mentioned  shall  hold  office  and  be  re- 
movable at  the  pleasure  of  the  courts  by  which  they  are 
severally  appointed,  and  they  shall  receive  such  compensation 
as  shall  be  prescribed  by  law,  and  discharge  such  duties  as 
shall  be  prescribed  by  law,  or  by  the  rules  or  orders  of  the 
courts  by  which  they  are  severally  appointed.  (Amendment 
adopted  November  8,  1904.) 

[ORIGINAL   SECTION.] 
Sec.  21.     The   justices   shall    appoint   a   reporter   of   the   de- 
cisions of  the  supreme  court,  who  shall  hold  his  office  and  be 
removable  at  their  pleasure.     He  shall   receive   an   annual   sal- 
ary not  to  exceed  twenty-five  hundred  dollars,  payable  monthly. 

REPORTER  OF  DECISIONS.— The  provision  of  this  section 
as  to  the  salary  of  the  ri'iiortor  is  prohibitory,  and  forbids  a 
salary  greater  than  two  thousand  five  hundred  dollars.  (Smith 
V.  Kenfield,  57  Cal.  138.) 


Art.  VI,  §§  22-24    constitution  of  1879.  272 

Judges  not  to  practice  law. 

Sec.  22.  No  judge  of  a  court  of  record  shall  practice 
law  in  any  court  of  this  state  during  his  continuance  in 
office. 

Eligibility  of  justices  and  judges. 

Sec.  23.  No  one  shall  be  eligible  to  the  office  of  a 
justice  of  the  supreme  court,  or  of  a  district  court  of  ap- 
peal, or  of  a  judge  of  a  superior  court,  unless  he  shall 
have  been  admitted  to  practice  before  the  supreme  court 
of  the  state.     (Amendment  adopted  November  8,  1904.) 

[ORIGINAL   SECTION.] 
Sec.  23.     No    one   shall   be    eligible   to    the    office   of  justice 
of  the  supreme   court,  or  to   the  office  of  judge   of  a  superior 
court,   unless   he   shall   have  been   admitted   to   practice   before 
the  supreme   court   of  the   state. 

Condition  precedent  to  draft  of  salary. 

Sec.  24.  No  judge  of  the  supreme  court  nor  of  a  dis- 
trict court  of  appeal,  nor  of  a  superior  court,  shall  draw 
or  receive  any  monthly  salary  unless  he  shall  make  and 
subscribe  an  affidavit  before  an  officer  entitled  to  admin- 
ister oaths,  that  no  cause  in  his  court  remains  pending 
and  undecided,  that  has  been  submitted  for  decision  for 
a  period  of  ninety  days.  In  the  determination  of  causes 
all  decisions  of  the  supreme  court  and  of  the  district 
courts  of  appeal  shall  be  given  in  writing,  and  the 
grounds  of  the  decision  shall  be  stated.     When  the  jus- 


273  CONSTITUTION  OF  1879.        Art.  VI,  §  25 

tiees  of  a  district  court  of  appeal  are  unable  to  concur 
in  a  judgment,  they  shall  give  their  several  opinions 
in  writing  and  cause  copies  thereof  to  be  forwarded  to 
the  supreme  court.     (Amendment  adopted  November  8, 

1904.) 

[ORIGINAL  SECTION.] 
Sec.  24.  No  judge  of  a  superior  court  nor  of  the  supreme 
court  shall,  after  the  first  day  of  July,  one  thousand  eight 
hundred  and  eighty,  be  allowed  to  draw  or  receive  any  monthly 
salary  unless  he  shall  take  and  subscribe  an  affidavit  before 
an  officer  entitled  to  administer  oaths,  that  no  cause  in  his 
court  remains  undecided  that  has  been  submitted  for  decision 
for  the  period  of  ninety  days. 

DECISIONS. — Failure  to  decide  all  cases  within  ninety  days 
does  not  work  a  forfeiture  of  the  salary  of  the  judge.  (Meyers 
v..Kenfield,  62  Cal.  512.) 

The  judge  is  liable  to  no  penalty  for  failure  to  decide  a  case 
within  the  time  specified  except  the  penalty  prescribed,  and 
he  cannot  be  answerable  to  an  individual  for  damages  for  such 
delay.     (Wyatt  v.  Arnot,  7  Cal.  App.  221,  94  Pac.  86.) 

Supreme  court  commission. 

Sec.  25.  The  present  supreme  court  commission  shall 
be  abolished  at  the  expiration  of  its  present  term  of  office, 
and  no  supreme  court  commission  shall  be  created  or  pro- 
vided for  after  January  1st,  A.  D.  1905.  (Amendment 
adopted  November  8,  1904.) 

Constitution — 18 


Art.  VII,  §  1       CONSTITUTION  OP  1879.  274 

ARTICLE  VII. 

PAEDONING  POWER. 

Section  1.  The  governor  shall  have  the  power  to 
grant  reprieves,  pardons,  and  commutations  of  sentence, 
after  conviction,  for  all  offenses  except  treason  and  cases 
of  impeachment,  upon  such  conditions,  and  with  such  re- 
strictions and  limitations,  as  he  may  think  proper,  sub- 
ject to  such  regulations  as  may  be  provided  by  law 
relative  to  the  manner  of  applying  for  pardons.  Upon 
conviction  for  treason,  the  governor  shall  have  power  to 
suspend  the  execution  of  the  sentence  until  the  case  shall 
be  reported  to  the  legislature  at  its  next  meeting,  when 
the  legislature  shall  either  pardon,  direct  the  execution 
of  the  sentence,  or  grant  a  further  reprieve.  The  gov- 
ernor shall  communicate  to  the  legislature,  at  the  be- 
ginning of  every  session,  every  case  of  reprieve  or  pardon 
granted,  stating  the  name  of  the  convict,  the  crime  for 
which  he  was  convicted,  the  sentence,  its  date,  the  date 
of  the  pardon  or  reprieve,  and  the  reasons  for  granting 
the  same.  Neither  the  governor  nor  the  legislature  shall 
have  power  to  grant  pardons,  or  commutations  of  sen- 
tence, in  any  case  where  the  convict  has  been  twice  con- 
victed of  felony,  unless  upon  the  written  recommenda- 
tion of  a  majority  of  the  judges  of  the  supreme  court. 

PARDONING  POWER. — The  pardoning  power  is  the  same  as 
that    exercised   by    the    representatives    of   the    English    cro-wn 


275  CONSTITUTION  OF  1879.        Art.  VII,  §  1 

in  this  country  in  colonial  times.  (People  v.  Bowen,  43  Cal. 
439,   13   Am.   Rep.   148.) 

A  document  signed  by  the  governor  releasing  a  prisoner  be- 
fore the  expiration  of  his  term  for  good  behavior  does  not 
remove  the  disability  to  testify.  (Blanc  v.  Rodgers,  49  Cal. 
15.) 

A  pardon  removes  the  disability  to  testify,  and  all  disabilities 
which  follow  the  conviction.  (People  v.  Bowen,  43  Cal.  439,  13 
Am.   Rep.   148.) 

An  offender  may  be  pardoned  after  he  has  suffered  the  pun- 
ishment adjudged  for  his  crime.  (People  v.  Bowen,  43  Cal. 
439,  13  Am.  Rep.  148.) 

An  executive  act  restoring  a  convicted  criminal  to  the  right 
Of  citizenship  is  not  a  pardon  and  does  not  remove  the  legal 
infamy  and  disability.  (People  v.  Bowen,  43  Cal.  439,  13 
Am.  Rep.  148.) 

The  pardoning  power  does  not  extend  to  the  reinstatement 
of  an  attorney  excluded  from  the  practice  by  law  or  the  order 
of  a  court.      (Cohen  v.  Wright,  22  Cal.  293,  323.) 

The  governor  may  pardon  as  well  before  as  after  trial. 
(Hatzfield  v.  Gulden,  7  Watts,  152,  31  Am.  Rep.  750;  York  Co. 
V.  Dalhousie,  45  Pa.  372;  Commonwealth  r.  Hitchman,  46  Pa. 
357.) 

The  pardon  may  be  conditional  as  well  as  absolute.  (Fla- 
vell's  Case,  8  Watts  &  S.  197;  People  v.  Potter,  1  Park.  C.  C. 
47;  Ex  parte  Wells,  18  How.  314,  15  L.  Ed.  421.) 

If  a  pardon  be  obtained  by  fraud  it  may  be  revoked  before 
actual  delivery.  (Ex  parte  De  Puy,  3  Ben.  307,  Fed.  Cas.  No. 
3814;   Commonwealth  v.  Ahl,  43  Pa.  53.) 

The  pardoning  power  has  no  authority  to  decree  a  repayment 
Of  a  fine.     (Cook  v.  Middlesex,  27  N.  J.  L.  637.) 

Delivery  is  essential  to  give  effect  to  a  pardon.  (Matter  of 
De  Puy,  3  Ben,  320,  Fed.  Cas.  No.  3814.) 


Art.  VIII,  §§  1,  2    CONSTITUTION  OF  1879.  276 

ARTICLE  VIII. 

MILITIA. 

§  1.     Organization  and  calling  forth  of. 
§  2.     Device,  banner,  or  flag  to  be  used. 

Organization  and  calling  forth  of. 

Section  1.  The  legislature  shall  provide,  hy  law,  for 
organizing  and  disciplining  the  militia,  in  such  manner 
as  it  may  deem  expedient,  not  incompatible  with  the 
constitution  and  laws  of  the  United  States.  Officers  of 
the  militia  shall  be  elected  or  appointed  in  such  manner 
as  the  legislature  shall  from  time  to  time  direct,  and 
shall  be  commissioned  by  the  governor.  The  governor 
shall  have  power  to  call  forth  the  militia  to  execute  the 
laws  of  the  state,  to  suppress  insurrections,  and  repel  in- 
vasions. 

MILITIA. — As  to  the  power  of  the  governor  to  call  out  the 
militia,  see  Stimson's  American  Statute  Law,  sec.  298. 

An  act  authorizing  the  governor  to  call  out  the  militia  when 
he  deemed  it  necessary  to  suppress  riots  or  mobs  was  held  un- 
constitutional.    (Green  v.  State,   15  Lea,  708.) 

The  mere  refusal,  by  incumbents  of  oflB.ces,  to  surrender  them 
is  not  an  insurrection,  and  will  not  justify  employment  of  the 
militia.     (In  re  Fire  etc.  Commrs.,  19  Colo.  503,  36  Pac.  234.) 

Device,  banner,  or  flag  to  be  used. 

Sec.  2.  All  military  organizations  provided  for  by 
this  constitution,  or  any  law  of  this  state,  and  receiving 


277  CONSTITUTION  OF  1879.      Art.  VIII,  §  2 

state  support,  shall,  while  under  arms  either  for  cer- 
emony or  duty,  carry  no  device,  banner,  or  flag  of  any 
state  or  nation,  except  that  of  the  United  States  or  the 
state  of  California, 


Art.  IX,  §  1         CONSTITUTION  OF  1879.  278 

'ARTICLE  IX. 

EDUCATION. 

§  1.  Promotion  of  intellectual  improvement. 

§  2.  Superintendent  of  public  instruction. 

§  3.  County  superintendents  of  schools. 

§  4.  School  funds,  source  and  origin,  and  how  appropriated. 

§  5.  System  of  common  schools  to  be  provided. 

§  6.  School  system,  what  to  include. 

§  7.  Text-books,  who  to  adopt — Local  boards  of  education. 

§  8.  Sectarianism  prohibited. 

§  9.  University  fund,  creation,  management,  and  application 

of. 

§  10.  Leland  Stanford  Junior  University. 

§  11.  The  California  School  of  Mechanical  Arts. 

§  12.  The  California  Academy  of  Sciences. 

§  13.  Cogswell  Polytechnical  College. 

Promotion  of  intellectual  improvement. 

Section  1.  A  general  diffusion  of  knowledge  and  in- 
telligence being  essential  to  the  preservation  of  the  rights 
and  liberties  of  the  people,  the  legislature  shall  encourage 
by  all  suitable  means  the  promotion  of  intellectual,  scien- 
tific, moral,  and  agricultural  improvement. 

EDUCATION.— The  act  of  1880  establishing  the  state  agri- 
cultural society,  and  providing  for  the  exhibition  of  breeds  of 
horses,  etc.,  and  of  agricultural,  mechanical,  and  domestic 
manufactures  and  productions,  is  authorized  by  this  section. 
(Melvin  v.  State,  121  Cal.  16,  53  Pac.  416;  People  v.  San 
Joaquia  Valley  Agr.  Assn.,  151  Cal.  797,  91  Pac.  740.) 


279  CONSTITUTION  OP  1879.     Art.  IX,  §§  2,  3 

Superintendent  of  public  instruction. 

Sec.  2.  A  superintendent  of  public  instruction  shall, 
at  each  gubernatorial  election  after  the  adoption  of  this 
constitution,  be  elected  by  the  qualified  electors  of  the 
state.  He  shall  receive  a  salary  equal  to  that  of  the 
secretary  of  state,  and  shall  enter  upon  the  duties  of  his 
office  on  the  first  Monday  after  the  first  day  of  January 
next  succeeding  his  election. 

County  superintendents  of  schools. 

Sec.  3.  A  superintendent  of  schools  for  each  county 
shall  be  elected  by  the  qualified  electors  thereof  at  each 
gubernatorial  election;  provided,  that  the  legislature 
may  authorize  two  or  more  counties  to  unite  and  elect 
one  superintendent  for  the  counties  so  uniting. 

SUPERINTENDENT. — The  superintendent  of  schools  is  a 
county  officer.     (People  v.  Babcock,  114  Cal.  559,  46  Pac.  818.) 

The  superintendent  of  schools  of  San  Francisco  is  not  affected 
by  the  provision  of  the  County  Government  Act  making  the 
board  of  supervisors  the  appointing  power.  (People  v.  Bab- 
cock, 114  Cal.  559,  46  Pac.  818.) 

The  election  of  superintendent  of  schools  is  governed  by 
this  constitutional  provision,  and  not  by  the  County  Govern- 
ment Act.  (Kahn  v.  Sutro,  114  Cal.  316,  46  Pac.  87,  33  L.  R. 
A.  620.) 

Under  a  provision  of  the  Consolidation  Act  providing  that 
officers  appointed  to  fill  vacancies  should  hold  office  "until  the 
regular  election  then  next  following,"  a  superintendent  of 
schools  thus  appointed  will  only  hold  till  the  next  general 
election,  and  not  till  the  next  gubernatorial  election.  (People 
V.  Babcock,  123  Cal.  307,  55  Pac.  1017.) 


Art.  IX,  §  4         CONSTITUTION  OF  1879.  280 

School  funds,  source  and  origin,  and  how  appropriated. 

Sec.  4.  The  proceeds  of  all  lands  that  have  been  or 
may  be  granted  by  the  United  States  to  this  state  for 
the  support  of  common  schools  which  may  be,  or  may 
have  been,  sold  or  disposed  of,  and  the  five  hundred 
thousand  acres  of  land  granted  to  the  new  states  under 
an  act  of  Congress  distributing  the  proceeds  of  the 
public  lands  among  the  several  states  of  the  Union,  ap- 
proved A.  D.  one  thousand  eight  hundred  and  forty-one, 
and  all  estates  of  deceased  persons  who  may  have  died 
without  leaving  a  will  or  heir,  and  also  such  per  cent  as 
may  be  granted,  or  may  have  been  granted,  by  Congress 
on  the  sale  of  lands  in  this  state,  shall  be  and  remain 
a  perpetual  fund,  the  interest  of  which,  together  with  all 
the  rents  of  the  unsold  lands,  and  such  other  means  as 
the  legislature  may  provide,  shall  be  inviolably  appro- 
priated to  the  support  of  common  schools  throughout  the 
state. 

SCHOOL  FUND. — The  word  "means"  includes  any  fund  aris- 
ing from  annual  taxation  for  school  purposes  levied  under  gen- 
eral laws  passed  for  that  purpose.  (Crosby  v.  Lyon,  37  Cal. 
242.) 

Whenever  the  legislature  raises  a  fund  for  the  support  of 
common  schools,  any  contemporaneous  or  subsequent  legislature 
having  for  its  object  the  diversion  of  such,  fund  to  any  other 
purpose  is  void.     (Crosby  v.  Lyon,  37  Cal.  242.) 

This  section  does  not  limit  the  power  of  the  legislature  to 
declare  that  aliens  may  be  heirs.  It  contemplates  some  pro- 
cedure in  the  nature  of  office  found  by  which  the  right  of  the 
state  shall  be  ascertained  and  determined,  and  legislation  pro- 
viding for  the  sale  of  the  land.  (State  T.  Smith,  70  Cal.  153, 
12  Pae.  121.) 


281  CONSTITUTION  OF  1879.         Art.  IX,  §  5 

Money  raised  for  the  support  of  the  common  schools  does 
not  become  a  part  of  the  school  fund  of  the  county  until  it 
has  been  apportioned  to  the  several  counties  by  the  super- 
intendent of  public  instruction.  (McCord  v.  Slavin,  143  Cal. 
325,   76  Pac.   1104.) 

System  of  common  schools  to  be  provided. 

Sec.  5.  The  legislature  shall  provide  for  a  system  of 
common  schools  by  which  a  free  school  shall  be  kept  up 
and  supported  in  each  district  at  least  six  months  in 
every  year,  after  the  first  year  in  which  a  school  has 
been  established. 

SCHOOL  SYSTEM. — The  opportunity  for  instruction  in  pub- 
lic schools  given  by  the  statutes  and  constitution  is  a  legal 
right,  as  much  as  a  vested  right  in  property.  (Ward  v.  Flood, 
48  Cal.  36,  17  Am.  Rep.  405.) 

By  the  constitution  the  educational  department  is  made  a 
state,  as  distinguished  from  a  municipal,  care,  and  the  regula- 
tion of  schools  in  San  .Francisco  does  not  remain  unchangeable 
under  the  Consolidation  Act.  The  Consolidation  Act  may  re- 
main for  municipal  purposes,  yet  the  educational  department, 
as  a  state  matter,  be  subject  to  general  laws  passed  for  that 
purpose.     (Earl  v.  Board  of  Education,  55  Cal.  489.) 

This  provision  requires  the  adoption  of  one  system,  which 
shall  be  applicable  to  all  the  common  schools.  (Kennedy  v. 
Miller,  97  Cal.  429,  32  Pac.  558;  San  Diego  v.  Dauer,  97  Cal. 
442,  32  Pac.  561;  Bruch  v.  Colombet,  104  Cal.  347,  38  Pac.  45.) 

It  does  not  authorize  one  system  for  school  districts  having 
boards  of  education,  and  another  system  for  school  districts 
not  having  boards  of  education,  (Bruch  v.  Colombet,  104  Cal. 
347,  38  Pac.  45.) 

It  is  within  the  constitutional  power  of  the  legislature  to 
provide  for  the  establishment  of  separate  schools  for  colored 
children,  and  the  exclusion  of  colored  cliildren  from  schools 
attended  by  white  children.  (Wysinger  v.  Crookshank,  82  Cal. 
588,  23  Pac.  54;  Ward  v.  Flood,  48  Cal.  36,  17  Am.  Kep.  405.) 


Art.  IX,  §  6         CONSTITUTION  OP  1879.  282 

But  the  legislature  cannot,  while  providing  a  system  of  edu- 
cation for  the  youth  of  the  state,  exclude  from  its  benefits 
children  merely  because  of  their  African  descent,  (Ward  T. 
Flood,  48'  Cal.  36',  17  Am.  Eep.  405.) 

School  system,  what  to  include. 

Sec.  6.  The  public  school  system  shall  include  day 
and  evening  elementary  schools,  and  such  day  and  even- 
ing secondary  schools,  normal  schools,  and  technical 
schools  as  may  be  established  by  the  legislature,  or  by 
municipal  or  district  authority.  The  entire  revenue  de- 
rived from  the  state  school  fund  and  from  the  general 
state  school  tax  shall  be  applied  exclusively  to  the  sup- 
port of  day  and  evening  elementary  schools;  but  the 
legislature  may  authorize  and  cause  to  be  levied  a  special 
state  school  tax  for  the  support  of  day  and  evening 
secondary  schools  and  technical  schools,  or  either  of  such 
schools,  included  in  the  public  school  system,  and  all 
revenue  derived  from  such  special  tax  shall  be  applied 
exclusively  to  the  support  of  the  schools  for  which  such 
special  tax  shall  be  levied.  (Amendment  adopted  No- 
vember 3,  1908.) 

[AMENDMENT  OF  1902.] 
Sec.  6.  The  public  school  system  shall  include  primary  and 
grammar  schools,  and  such  high  schools,  evening  schools,  normal 
schools,  and  technical  schools  as  may  be  established  by  the 
legislature,  or  by  municipal  or  district  authority.  The  entire 
revenue  derived  from  the  state  school  fund  and  from  the 
general  state  school  tax  shall  be  applied  exclusively  to  the 
support   of  primary   and   grammar   schools;   but   the   legislature 


283  CONSTITUTION  OP  1879.         Art.  IX,  §  6 

may  authorize  and  cause  to  be  levied  a  special  state  school 
tax  for  the  support  of  high  schools  and  technical  schools,  or 
either  of  such  schools,  included  in  the  public  school  system, 
and  all  revenue  derived  from  such  special  tax  shall  be  applied 
exclusively  to  the  support  of  the  schools  for  which  such  special 
tax  shall  be  levied.     (Amendment  adopted  November  4,  1902.) 

[ORIGINAL  SECTION.] 
Sec.  6,  The  public  school  system  shall  include  primary  and 
grammar  schools,  and  such  high  schools,  evening  schools,  normal 
schools,  and  technical  schools  as  may  be  established  by  the 
legislature,  or  by  municipal  or  district  authority;  but  the  en- 
tire revenue  derived  from  the  state  school  fund,  and  the  state 
school  tax,  shall  be  applied  exclusively  to  the  support  of 
primary  and  grammar  schools. 

CCHOOLS  AND  FUNDS. — High  schools  are  an  integral  part 
of  our  public  school  system.  (Chico  High  School  Board  v. 
Supervisors,    118   Gal.   11.5,   50   Pac.   275.) 

A  law  providing  a  special  method  of  levying  a  tax  for  high 
cchools,  differing  from  that  provided  for  other  school  districts, 
is  valid.  (People  v.  Lodi  High  School  Dist.,  124  Cal.  694,  57 
Pac.   6G0.) 

A  statute  authorizing  county  assessors  to  retain,  as  their 
compensation  in  collecting,  fifteen  per  cent  of  all  poll  taxes 
collected  by  them,  is  not  in  conflict  with  this  section,  since 
the  word  "exclusively"  is  directed  to  the  point  that  the  school 
funds  must  be  applied  to  the  support  of  primary  and  grammar 
schools,  to  the  exclusion  of  other  schools.  (San  Luis  Obispo 
V.  Felts,   104  Cal.  60,  37  Pac.   780.) 

The  words  "average  dally  attendance,"  used  in  subdivision 
4  of  section  18.38  of  the  Political  Code,  in  regard  to  appor- 
tionment of  funds,  mean  average  daily  attendance  in  the 
common  schools  of  the  district,  and  do  not  include  the  high 
schools  and  evening  schools.  (Stockton  School  Dist.  v.  Wright, 
134  Cal.  64,  66  Pac.  34.) 

All  school  funds  must  be  applied  exclusively  to  primary  and 
grammar  schools.  (Stockton  School  District  v.  Wriglit,  134 
Cal.  64,  66  Pac.  34.) 


Art.  IX,  §  7         CONSTITUTION  OP  1879.  284 

The  provision  that  the  moneys  derived  from  the  sale  of 
uncovered  lands  should  be  "paid  into  the  school  fund  of  the 
county  where  the  land  lies"  was  not  an  "appropriation"  of 
these  moneys.     (McCord  v.  Slavin,  143  Cal.  325,  76  Pac.  1104.) 

While  high  schools  are  part  of  the  public  school  system,  it 
was  intended  to  make  them  entirely  distinct  from  primary  and 
grammar  schools.  (Brown  v.  City  of  Visalia,  141  Cal.  372,  74 
Pac.  1042.) 

The  term  "public  schools"  in  section  798  of  the  Municipal 
Corporation  Act  does  not  embrace  high  schools.  (Brown  v. 
City  of  Visalia,  141  Cal.  372,  74  Pac.   1042.) 

Kindergartens  are  not  part  of  the  "primary  and  grammar" 
schools,  and  attendance  upon  them  cannot  be  considered  in 
apportioning  the  state  school  fund.  (Los  Angeles  v.  Kirk, 
148  Cal.  385,  83  Pac.  250.) 

Evening  schools  having  the  status  of  a  high  school  are  au- 
thorized by  the  constitution  as  a  part  of  the  public  school 
system.  (Board  of  Education  v.  Hyatt,  152  Cal.  515,  93  Pac. 
117.) 

Text-books,  who  to  adopt — Local  boards  of  education. 

Sec.  7.  The  governor,  as  superintendent  of  public 
instruction,  the  president  of  the  University  of  Califor- 
nia, and  the  professor  of  pedagogy  therein  and  the  prin- 
cipals of  the  state  normal  schools,  shall  constitute  the 
state  board  of  education,  and  shall  compile,  or  cause 
to  be  compiled,  and  adopt  a  uniform  series  of  text-books 
for  use  in  the  common  schools  throughout  the  state. 
The  state  board  may  cause  such  text-books  when 
adopted,  to  be  printed,  and  published  by  the  superin- 
tendent of  state  printing,  at  the  state  printing  office ; 
and  when  so  printed  and  published,  to  be  distributed 
and  sold  at  the  cost  price  of  printing,  publishing  and 
distributing  the  same.     The  text-books,  so  adopted,  shall 


Art.  IX,  Sec.  7.     Insert  at  Page  284. 

Sec.  7.  The  legislature  shall  provide  for  the  aijpoinl- 
iiu'iit  or  election  of  a  state  board  of  education,  and  said 
hoard  shall  provide,  compile,  or  cause  to  be  compiled, 
and  adopt,  a  uniform  series  of  text-books  for  use  in  the 
day  and  evenino;  elementary  schools  througliout  the  state. 
The  state  board  may  cause  such  text-books,  when  adopted. 
to  be  printed  and  published  by  the  superintendent  of 
state  ]irintiiiiz'.  at  the  stat(^  priiitinv  office;  and  wherever 
and  however  such  text-books  may  lie  ])rinted  and  pub- 
lished, they  .shall  be  furnished  ;Mid  distributed  by  the 
slate  free  of  cost  or-  any  charge  wliatever,  to  all  children 
attending  the  day  and  evening  elementary  schools  of  the 
state,  under  such  conditions  as  the  legislature  shall  pre- 
scribe. The  text-books,  so  atlopted.  shall  continue  in 
use  not  lesvs  thati  four  years,  without  an\-  change  or  al- 
teration whatsoever-  which  will  recpiir'e  oi-  rrecessitate  the 
fiir'nishirrg  of  new  books  to  such  pupils,  and  said  stale 
i)o;ird  shall  pei'for'm  such  other  dirties  as  rrray  be  i)re- 
scribed  l)y  law.  The  legislatrrre  s!iall  provide  for  a  l)oard 
of  cdrrcatiorr  in  each  county  in  the  stat:'.  The  connty 
siriierinterrdents  and  lire  county  boar'd.s  of  ediicatiorr  shall 
have  contr'ol  of  the  examirration  of  teachers  and  tire 
gr'antiiiL;'  of  teacher's"  certific;rtes  within  Iheii-  r'espeetive 
jur'isdictioirs.      (  Arnendnient  a(hi|ited  No\'ernher' .1.  11)12.) 


Art.  IX,  §  7         CONSTITUTION  OF  1879.  286 

[AMENDMENT  OP  1885.] 
Sec.  7.  The  governor,  superintendent  of  public  instruction, 
and  the  principals  of  the  state  normal  schools,  shall  constitute 
the  state  board  of  education,  and  shall  compile,  or  cause  to 
be  compiled,  and  adopt  a  uniform  series  of  text-books  for  use 
in  the  common  schools  throughout  the  state.  The  state  board 
may  cause  such  text-books,  when  adopted,  to  be  printed  and 
published  by  the  superintendent  of  state  printing,  at  the  state 
printing  oflSce;  and  when  so  printed  and  published,  to  be  dis- 
tributed and  sold  at  the  cost  price  of  printing,  publisliing,  and 
distributing  the  same.  The  text-books,  so  adopted,  shall  con- 
tinue in  use  not  less  than  four  years;  and  said  state  board 
shall  perform  such  other  duties  as  may  be  prescribed  by  law. 
The  legislature  shall  provide  for  a  board  of  education  in  each 
county  in  the  state.  The  county  superintendents  and  the  county 
boards  of  education  shall  have  control  of  the  examination  of 
teachers  and  the  granting  of  teachers'  certificates  within  their 
respective  jurisdiction.  (Ratification  declared  February  12, 
1885.) 

[ORIGINAL   SECTION.] 

Sec.  7.  The  local  boards  of  education,  and  the  boards  of 
supervisors,  and  the  county  superintendents  of  the  several 
counties  which  may  not  have  county  boards  of  education,  shall 
adopt  a  series  of  text-books  for  the  use  of  the  common  schools 
within  their  respective  jurisdictions;  the  text-books  so  adopted 
shall  continue  in  use  for  not  less  than  four  years;  they  shall 
also  have  control  of  the  examination  of  teachers  and  the  grant- 
ing of  teachers'   certificates  within   their   several   jurisdictions. 

TEXT-BOOKS,  ETC. — This  section  is  self-executing  in  so  far 
as  it  provides  for  the  selection  of  text-books  by  local  boards, 
and  operated  as  a  repeal  of  the  act  of  1875,  which  provided 
that  the  text-books  in  use  in  the  years  1873,  1874,  1875,  should 
be  continued  in  use  until  otherwise  provided  by  statute. 
(People  v.  Board  of  Education,  55  Cal.  331.) 


287  CONSTITUTION  OF  1879.         Art.  IX,  §  8 

The  board  of  education  is  a  legal  body,  capable  of  suing  for 
lots  conveyed  to  them  by  the  fund  commissioners.  (Board  of 
Education  v.  Fowler,  19  "Cal.  11.) 

The  phrase  ''local  board"  applies  to  the  territory  over  which 
it  exercises  jurisdiction  as  a  board.  Each  board  is  local  as 
to  the  territory  of  its  jurisdiction.  The  board  in  a  city  is 
local  to  the  city;  the  board  of  a  township  is  local  as  to  the 
township;  and  the  board  of  a  county  is  local  as  to  the  county; 
and  where  portions  of  a  county  are  subject  to  local  boards  for 
such  portions,  the  county  board  is  local  as  to  the  balance 
of  the  county.     (People  v.  Board  of  Education,  55  Cal.  331.) 

The  provision  of  this  section  conferring  upon  county  super- 
intendents and  the  county  board  of  education  "control,"  etc.,  is 
not  to  be  construed  as  conferring  unlimited  or  exclusive  con- 
trol, or  power  to  legislate  upon  that  subject,  nor  as  taking 
away  the  power  of  the  legislature  to  proscribe  the  rules  by 
which  the  qualifications  of  teachers  shall  be  determined,  and 
to  determine  what  shall  entitle  them  to  a  certificate.  (Mitchell 
V,  Winnek,  117  Cal.  520,  49  Pac.  579.) 

Sectarianism  prohibited. 

Soc.  8.  No  public  money  shall  ever  be  appropriated 
for  the  support  of  any  sectarian  or  denominational 
school,  or  any  school  not  under  the  exclusive  control  of 
the  officers  of  the  public  schools ;  nor  shall  any  sectarian 
or  denominational  doctrine  be  taught,  or  instruction 
thereon  be  permitted,  directly  or  indirectly,  in  any  of  the 
common  schools  of  this  state. 

SECTARIAN  SCHOOLS. — An  act  providing  for  the  commit- 
ment of  minor  criminals  to  nonsectarian  charitable  corporations, 
the  expense  of  maintenance  to  be  paid  by  the  county,  is  not 
in  violation  of  this  section,  since  it  only  applies  to  schools 
such  as  are  provided  for  by  the  constitution.  (Boys'  and  Girls' 
Aid  Soc.  V.  Beis,  71  Cal.  "^627,  12  Pac.  796.) 


Art.  IX,  §  9         CONSTITUTION  OF  1879.  288 

University  fund,  creation,  management,  and  application 
of. 

Sec.  9.  The  University  of  California  shall  constitute 
a  public  trust,  and  its  organization  and  government 
shall  be  perpetually  continued  in  the  form  and  char- 
acter prescribed  by  the  organic  act  creating  the  same, 
passed  March  twenty-third,  eighteen  hundred  and  sixty^ 
eight  (and  the  several  acts  amendatory  thereof ),_sub- 
ject  only  to  such  legislative  control  as  may  be  necessary 
to  ihsiire  compliance  with  the  terms  of  its  endow- 
ments, and  the  proper  investment  and  security  of  its 
funds.  It  shall  be  entirely  independent  of  all  political 
or  sectarian  influence,  and  kept  free  therefrom  in  the 
appointment  of  its  regents,  and  in  the  administration  of 
its  affairs;  provided,  that  all  the  moneys  derived  from 
the  sale  of  the  public  lands  donated  to  this  state  by  act 
of  Congress,  approved  July  second,  eighteen  hundred  and 
sixty-two  (and  the  several  acts  amendatory  thereof), 
shall  be  invested  as  provided  by  said  acts  of  Congress, 
and  the  interest  of  said  moneys  shall  be  inviolably  ap- 
propriated to  the  endowment,  support,  and  maintenance 
of  at  least  one  college  of  agriculture,  where  the  leading 
objects  shall  be  (without  excluding  other  scientific  and 
classical  studies,  and  including  military  tactics),  to  teach 
such  branches  of  learning  as  are  related  to  scientific  and 
practical  agriculture  and  the  mechanic  arts,  in  accord- 
ance with  the  requirements  and  conditions  of  said  acts 
of  Congress;  and  the  legislature  shall  provide  that  if, 


289  CONSTITUTION  OF  1879.       Art.  IX,  §  10 

through  neglect,  misappropriation,  or  any  other  contin- 
gency, any  portion  of  the  funds  so  set  apart  shall  be 
diminished  or  lost,  the  state  shall  replace  such  portion  so 
lost  or  misappropriated,  so  that  the  principal  thereof 
shall  remain  forever  undiminished.  No  person  shall  be 
debarred  admission  to  any  of  the  collegiate  departments 
of  the  university  on  account  of  sex. 

UNIVERSITY  OF  CALIFORNIA.— The  University  of  Cali- 
fornia is  a  public  corporation.  (Estate  of  Eoyer,  123  Cal.  G14, 
56  Pac.  46],  44  L.  R.  A.  364.) 

The  regents  of  the  university  are  not  public  officers.  (Lundy 
V.  Delmas,  104  Cal.  655,  38  Pac.  445,  26  L.  E.  A.  651.) 

After  the  affiliation  of  the  Hastings  College  of  the  Law  with 
the  University  of  California,  the  legislature  had  no  power  to 
change  the  form  of  the  government  of  the  college.  (People  v. 
Kewen,  69  Cal.  215,  10  Pac.  393.) 

Leland  Stanford  Junior  University. 

Sec.  10.  The  trusts  and  estates  created  for  the 
founding,  endowment,  and  maintenance  of  the  Le- 
land Stanford  Junior  University,  under  and  in  ac- 
cordance with  "An  act  to  advance  learning,  etc.," 
approved  March  ninth,  eighteen  hundred  and  eighty- 
five  by  the  endowment  grant  executed  by  Leland 
Stanford  and  Jane  Lathrop  Stanford  on  the  eleventh 
day  of  November,  A.  D.  eighteen  hundred  and  eighty- 
five,  and  recorded  in  liber  eighty-three  of  deeds,  at 
page  twenty-three  et  seq.,  records  of  Santa  Clara 
county,  and  by  the  amendments  of  such  grant,  and  by 

Constitutioa — 19 


Art.  IX,  §  10       CONSTITUTION  OF  1879.  290 

gifts,  grants,  bequests,  and  devises  supplementary 
thereto,  and  by  confirinatory  grants,  are  permitted, 
approved,  and  confirmed.  The  board  of  trustees  of 
the  Leland  Stanford  Junior  University,  as  such,  or  in 
the  name  of  the  institution,  or  by  other  intelligible 
designation  of  the  trustees  or  of  the  institution  may 
receive  property,  real  or  personal,  and  wherever  sit- 
uated, by  gift,  grant,  devise,  or  bequest,  for  the  benefit 
of  the  institution,  or  of  any  department  thereof,  and 
such  property,  unless  otherwise  provided,  shall  be 
held  by  the  trustees  of  the  Leland  Stanford  Junior 
University  upon  the  trusts  provided  for  in  the  grant 
founding  the  university,  and  amendments  thereof,  and 
grants,  bequests,  and  devises  supplementary  thereto. 
The  legislature,  by  special  act,  may  grant  to  the  trustees 
of  the  Leland  Stanford  Junior  University  corporate 
powers  and  privileges,  but  it  shall  not  thereby  alter 
their  tenure,  or  limit  their  powers  or  obligations  as 
trustees.  All  property  now  or  hereafter  held  in  trust 
for  the  founding,  maintenance,  or  benefit  of  the  Leland 
Stanford  Junior  University,  or  of  any  department 
thereof,  may  be  exempted  by  special  act  from  state  tax- 
ation, and  all  personal  property  so  held,  the  Palo  Alto 
farm  as  described  in  the  endowment  grant  to  the  trus- 
tees of  the  university,  and  all  other  real  property  so 
held  and  used  by  the  university  for  educational  pur- 
poses exclusively,  may  be  similarly  exempted  from 
county   and  municipal   taxation;   provided,   that   resi- 


291  CONSTITUTION  OF  1879.    Art.  IX,  §§  11, 12 

dents  of  California  shall  be  charged  no  fees  for  tuition 
unless  such  fees  be  authorized  by  act  of  the  legislature. 
(Amendment  adopted  November  6,  1900.) 

The  California  School  of  Mechanical  Arts. 

Sec.  11.  All  property  now  or  hereafter  belonging  to 
"The  California  School  of  Mechanical  Arts,"  an  in- 
stitution founded  and  endowed  by  the  late  James  Lick 
to  educate  males  and  females  in  the  practical  arts  of 
life,  and  incorporated  under  the  laws  of  the  state  of 
California,  November  "twenty-third,  eighteen  hundred 
and  eighty-five,  having  its  school  buildings  located  in 
the  city  and  county  of  San  Francisco,  shall  be  exempt 
from  taxation.  The  trustees  of  said  institution  must  an- 
nually report  their  proceedings  and  financial  accounts 
to  the  governor.  The  legislature  may  modif}^  suspend, 
and  revive  at  will  the  exemption  from  taxation  herein 
given.     (Amendment  adopted  November  6,  1900.) 

The  California  Academy  of  Sciences. 

Sec.  12.  All  property  now  or  hereafter  belonging  to 
the  "California  Academy  of  Sciences,"  an  institution 
for  the  advancement  of  science  and  maintenance  of  a 
free  museum,  and  chiefly  endowed  by  the  late  Jam.es 
Lick,  and  incorporated  under  the  laws  of  the  state  of 
California,  January  sixteenth,  eighteen  hundred  and 
seventy-one,  having  its  buildings  located  in  the  city 
and  county  of  San  Francisco,  shall  be  exempt  from 


Art.  IX,  §  13       CONSTITUTION  OP  1879.  292 

taxation.  The  trustees  of  said  institution  must  an- 
nually report  their  proceedings  and  financial  accounts 
to  the  governor.  The  legislature  may  modify,  suspend, 
and  revive  at  will  the  exemption  from  taxation  herein 
given,  (New  section  added  by  amendment  approved 
November  8,  1904.) 

Cogswell  Polytechnical  College. 

Sec.  13.  All  property  now  or  hereafter  belonging 
to  the  Cogswell  Polytechnical  College,  an  institution  for 
the  advancement*  of  learning,  incorporated  under  the 
laws  of  the  state  of  California,  and  having  its  buildings 
located  in  the  city  and  county  of  San  Francisco,  shall 
be  exempt  from  taxation.  The  trustees  of  said  insti- 
tution must  annually  report  their  proceedings  and  fi- 
nancial accounts  to  the  governor.  The  legislature  may 
modify,  suspend,  and  revive  at  will  the  exemption  from 
taxation  herein  given.  (New  section  added  by  amend- 
ment adopted  November  6,  1906.) 


293  CONSTITUTION  OF  1879.  Art.  X,  §  1 

■ARTICLE  X. 
STATE  INSTITUTIONS  AND  PUBLIC  BUILDINGS, 
§  1.     State  prison  directors,  appointment  and  term  of  office, 
§  2.     Authority  and  duties  of. 
§  3.     Power  of  appointment  of  employees. 
§  4.     Allowance  for  expenses. 
§  5.     Powers  and  duties  to  be  regulated  by  law. 
§  6.     Convict  labor  to  be  regulated. 

State  prison  directors,  appointment  and  term  of  office. 

Section  1.  There  shall  be  a  state  board  of  prison 
directors,  to  consist  of  five  persons,  to  be  appointed 
by  the  governor,  wi-th  the  advice  and  consent  of  the 
senate,  who  shall  hold  office  for  ten  years,  except  that 
the  first  appointed  shall,  in  such  manner  as  the  legis- 
lature may  direct,  be  so  classified  that  the  term  of  one 
person  so  appointed  shall  expire  at  the  end  of  each  two 
years  during  the  first  ten  years,  and  vacancies  occur- 
ring shall  be  filled  in  like  manner.  The  appointee  to 
a  vacancy,  occurring  before  the  expiration  of  a  term, 
shall  hold  office  only  for  the  unexpired  term  of  his  pre- 
decessor. The  governor  shall  have  the  power  to  remove 
either  of  the  directors  for  misconduct,  incompetency,  or 
neglect  of  duty  after  an  opportunity  to  be  heard  upon 
written  charges. 

PRISON  DIRECTORS. — Under  tliis  section  the  governor  has 
authority  to  make  an  investigation  into  the  conduct  of  the 
state  board  of  prison  directors  with  a  view  of  removing  them 
from  office.     (Chapman  v.  Stoneman,  63  Cal.  490.) 


Art.  X,  §§  2-4    CONSTITUTION  OF  1879.  294 

Authority  and  duties  of. 

Sec.  2.  The  board  of  directors  shall  have  the  charge 
and  siiiperintendence  of  the  state  prisons,  and  shall  pos- 
sess such  powers,  and  perform  such  duties,  in  respect 
to  other  penal  and  reformatory  institutions  of  the  state, 
as  the  legislature  may  prescribe. 

Power  of  appointment  of  employees. 

Sec.  3.  The  board  shall  appoint  the  warden  and 
clerk,  and  determine  the  other  necessary  officers  of  the 
prisons.  The  board  shall  have  power  to  remove  the 
wardens  and  clerks  for  misconduct,  incompetency,  or 
neglect  of  duty.  All  other  officers  and  employees  of  the 
prisons  shall  be  appointed  by  the  warden  thereof,  and 
be  removed  at  his  pleasure. 

Allowance  for  expenses. 

Sec.  4.  The  members  of  the  board  shall  receive  no 
compensation  other  than  reasonable  traveling  and  other 
expenses  incurred  while  engaged  in  the  performance  of 
official  duties,  to  be  audited  as  the  legislature  may  di- 
rect. 

COMPENSATION. — An  act  allowing  the  state  prison  direct- 
ors mileage  and  "one  hundred  dollars  for  other  expenses"  is 
in  conflict  with  this  section,  since  the  legislature  is  not  au- 
thorized to  audit  the  expenses,  but  is  directed  to  provide  how 
and  before  what  tribunal  or  board  the  expenses  shall  be  audited. 
(People  V.  Chapman,  61  Cal.  262.) 


295  CONSTITUTION  OF  1879.     Art.  X,  §§  5,  6 

Powers  and  duties  to  be  regulated  by  law. 

Sec.  5.  The  legislature  shall  pass  such  laws  as  may 
be  necessary  to  further  define  and  regulate  the  powers 
and  duties  of  the  board,  w^ardens,  and  clerks,  and  to 
carry  into  effect  the  provisions  of  this  article. 

Convict  labor  to  be  regulated. 

Sec.  6.  After  the  first  day  of  January,  eighteen 
hundred  and  eighty-two,  the  labor  of  convicts  shall  not 
be  let  out  by  contract  to  any  person,  copartnership, 
company,  or  corporation,  and  the  legislature  shall,  by 
law,  provide  for  the  working  of  convicts  for  the  bene- 
fit of  the  state. 


CONSTITUTION  OP  1879.  296 


ARTICLE  XI. 

CITIES,  COUNTIES,  AND  TOWNS. 

§     1.     Counties  as  subdivisions  of  the  state. 

§     2.     Eemoval  of  county  seats. 

§     3.     New  counties,  establishment  of. 

§     4.     County  governments  to  be  uniform,  under  general  laws. 

§     5.     Boards  of  supervisors,  election  and  appointment  of. 

§     6.     Municipal  corporations  to  be  controlled  by  general  lawB. 

§     7.     City  and  county  governments  may  be  consolidated. 

§     7i.  Freeholders'  charters  for  counties. 

§     8.     City  charters,  how  framed  and  ratified. 

§     8i.  City  and  county  charters,  to  contain  what. 

§     8a.  Panama-Pacific  International  Exposition. 

§     9.     Compensation  of  officers. 

§  10.     State  taxes,  no  release  or  discharge  from. 

§  11.  Local  police,  sanitary,  and  other  regulations  may  be 
enforced. 

§  12.     Assessment  and  collection  of  taxes. 

§  13.     Powers  not  to  be  delegated  to  special  commission,  etc. 

§  13^.  Payment  of  bonds. 

§  14.     Inspection  officers,  appointment  of. 

§  15.  Private  property  not  liable  for  corporate  debt  of  munici- 
pality. 

§  16.     Moneys,  etc.,  to  be  deposited  with  treasurer. 

§  16i.  Deposit  of  public  moneys. 

§  17.     Making  profit  out  of  public  funds  a  felony. 

{  18.     Restriction  on  power  to  incur  indebtedness. 

§  1&.     Municipal  ownership  of  public  utilities. 


297  CONSTITUTION  OF  1879.     Art.  XI,  §§  1,  2 

Counties  as  subdivisions  of  the  state. 

Section  1.  The  several  counties,  as  they  now  exist, 
are  hereby  recognized  as  legal  subdivisions  of  this 
state. 

COUNTIES. — The  people  of  a  county  are  not  a  corporation, 
nor  can  they  sue  or  be  sued,  but  the  county  itself  is  a  cor- 
poration and  the  proper  party  plaintiff.  (People  v.  Myers,  15 
Cal.   33.) 

To  constitute  a  county  something  more  is  required  than  a 
law  defining  its  boundaries.  A  local  government  must  be  pro- 
Tided.     (People   V.   McGuire,   32   Cal.   140.) 

A  county  is  a  part  of  the  state  government,  and  cannot  bo 
sued  without  the  consent  of  the  state.  (Sharp  v.  Contra  Costa 
County,  34  Cal.  284.) 

The  consolidated  city  and  county  of  San  Francisco  is  in- 
cluded in  the  designation  "county."  (Kahn  v.  Sutro,  114  Cal. 
316,  46  Pac.  87,  33  L.  E.  A.  G20.) 

At  common  law  an  action  did  not  lie  against  a  county;  and 
this  was  the  law  of  this  state  until  the  legislature  gave  that 
right  in  1854.  (Oilman  v.  Contra  Costa  County,  8  Cal.  52,  68 
Am.  Dec.  290.) 

The  board  of  supervisors  of  a  county  is  not  the  proper  party 
defendant  in  an  action  upon  a  claim  against  the  county. 
(Hastings  v.  San  Francisco,  18  Cal.  49.) 

Removal  of  county  seats. 

Sec.  2.  No  county  seat  shall  be  removed  unless  two- 
thirds  of  the  qualified  electors  of  the  county,  voting  on 
the  proposition  at  a  general  election,  shall  vote  in  favor 
of  such  removal.  A  proposition  of  removal  shall  not  be 
submitted  in  the  same  county  more  than  once  in  four 
years. 

COUNTY  SEATS. — The  legislature  may  delegate  the  power 
to  the  voters  of  a  county  to  select  a  county  seat.  (Upham  v. 
Supervisors,  8  Cal.  378.) 


Art.  XI,  §  3         CONSTITUTION  OF  1879.  298 

New  counties,  establishment  of. 

Sec.  3.  The  legislature,  by  general  and  uniform 
laws,  may  provide  for  the  alteration  of  county  bound- 
ary lines,  and  for  the  formation  of  new  counties;  pro- 
vided, however,  that  no  new  county  shall  be  established 
%vhich  shall  reduce  any  county  to  a  population  of  less 
than  twenty  thousand;  nor  shall  a  new  county  be 
formed  containing  a  less  population  than  eight  thou- 
sand; nor  shall  any  line  thereof  pass  within  five  miles 
of  the  exterior  boundary  of  the  city  or  town  in  which 
the  county  seat  of  any  county  proposed  to  be  divided 
is  situated.  Every  county  which  shall  be  enlarged  or 
created  from  territory  taken  from  any  other  county 
or  counties,  shall  be  liable  for  a  just  proportion  of  the 
existing  debts  and  liabilities  of  the  county  or  counties 
from  which  such  territory  shall  be  taken.  (Amend- 
ment adopted  November  8,  1910.) 

[AMENDMENT  OF  1894.] 
Sec.  3.  The  legislature,  by  general  and  uniform  laws,  may 
provide  for  the  formation  of  new  counties;  provided,  however, 
that  no  new  county  shall  be  established  which  shall  reduce  any 
county  to  a  population  of  less  than  eight  thousand;  nor  shall 
a  new  county  be  formed  containing  a  less  population  than  five 
thousand;  nor  shall  any  line  thereof  pass  within  five  miles  of 
the  county  seat  of  any  county  proposed  to  be  divided.  Every 
county  which  shall  be  enlarged  or  created  from  territory  taken 
from  any  other  county  or  counties,  shall  be  liable  for  a  just 
proportion  of  the  existing  debts  and  liabilities  of  the  county 
or  counties  from  which  such  territory  shall  be  taken.  (Amend- 
ment adopted  November  6,  1894.) 


299  CONSTITUTION  OP  1879.         Art.  XI,  §  3 

[OKIGINAL  SECTION.] 
Sec.  3.  No  new  county  shall  be  established  which  shall  re- 
duce any  county  to  a  population  of  less  than  eight  thousand; 
nor  shall  a  new  county  be  formed  containing  a  less  population 
than  five  thousand;  nor  shall  any  line  thereof  pass  within  five 
miles  of  the  county  seat  of  any  county  proposed  to  be  divided. 
Every  county  which  shall  be  enlarged  or  created  from  territory 
taken  from  any  other  county  or  counties,  shall  be  liable  for 
a  just  proportion  of  the  existing  debts  and  liabilities  of  the 
county  or  counties  from  which  such  territory  shall  be  taken. 

NEW  COUNTIES. — The  legislature,  except  as  restrained  by 
constitutional  limitations,  may  change  the  boundaries  of  coun- 
ties, consolidate  two  or  more  into  one,  or  divide  and  create 
new  counties  out  of  the  territory  of  one  or  more  existing  ones; 
and  may  make  any  provision  it  sees  fit  as  to  a  division  of  the 
property  and  debts  of  such  counties.  (Los  Angeles  Co.  v. 
Orange  Co.,  97  Cal.  329,  32  Pac.  316.) 

A  newly  created  county  does  not  become  a  county  until  ita 
organization  is  perfected  by  the  election  of  its  officers.  (People 
V.  McGuire,  32  Cal.  140.) 

The  legislature  cannot,  in  organizing  a  new  county,  change 
the  term  of  the  judges  as  fixed  by  the  constitution.  (People 
T.  Templeton,  12  Cal.  394.) 

The  last  clause  of  this  section  relates  only  to  the  indebtedness 
of  the  county,  and  does  not  require  any  division  of  the  assets 
of  the  old  county.  (Los  Angeles  Co.  v.  Orange  Co.,  97  Cal. 
329,  32  Pac.  316.) 

The  legislature  may  fix  the  time  at  which  to  properly  deter- 
mine what  would  be  a  "just  proportion"  of  the  debts  and 
liabilities  to  be  assumed  by  the  new  county.  (Los  Angeles 
Co.  v.  Orange  Co.,  97  Cal.  329,  32  Pac.  316.) 

The  question  of  the  liability  of  the  new  and  old  counties  is 
purely  legislative.  (Riverside  Co.  v.  San  Bernardino  Co.,  134 
Cal.  517,  66  Pac.  788.) 

In  creating  a  new  county,  it  is  for  the  legislature  to  deter- 
mine how  the  debts  and  property  of  the  county  shall  be  divided 
and  apportioned,  and  if  the  commissioners  fail  by  mistake  to 
divide  a  claim  existing  in  favor  of  a  county  against  the  state. 


Art.  XI,  §  3         CONSTITUTION  OF  1879.  800 

the  remedy  for  such  failure  is  legislative,  and  not  judicial, 
and  the  courts  have  no  jurisdiction  of  an  action  by  the  new 
county  to  recover  its  proportion  of  such  claim  when  paid  by 
the  state  to  the  county  from  which  the  new  county  was  formed. 
(Orange  Co.  v.  Los  Angeles  Co.,  114  Cal.  390,  46  Pac.  173.) 

The  courts  have  no  power  to  determine  what  is  a  "just  pro- 
portion" under  this  section.  (Tulare  Co.  v.  Kings  Co.,  117  Cal. 
195,  49  Pac.  8.) 

Upon  the  division  of  a  county,  if  no  provision  is  made  by  law 
for  any  change  in  the  custody  of  the  swamp  land  fund,  no 
action  will  lie  on  behalf  of  the  new  county  to  recover  a  share 
of  such  fund,  but  the  legislature  is  the  appropriate  and  only 
source  of  relief.  (Kings  Co.  v.  Tulare  Co.,  119  Cal.  509,  51  Pac. 
866.) 

Where  no  provision  is  made  as  to  the  property  and  assets, 
the  old  county  will  be  entitled  to  retain  all  public  property  and 
assets,  except  such  buildings  and  structures  as  lie  within  the 
limits  of  the  new,  and  will  be  liable  for  its  prior  obligations. 
(Colusa  Co.  V.  Glenn  Co.,  124  Cal.  498,  57  Pac.  477.) 

When  a  new  county  is  organized  out  of  a  part  of  the  terri- 
tory before  constituting  another  county,  the  claim  of  the  old 
against  the  new  county  for  payment  of  the  new  county's  pro- 
portion of  the  debts  of  the  old  county  is  of  an  ectmtable  nature 
only,  and  requires  legislation  to  enable  the  old  county  to  en- 
force it.     (Deals  v.  Supervisors,  28  Cal.  449.) 

The  legislature  may  require  a  new  county  to  pay  interest 
upon  a  debt  due  to  the  old.     (Beats  v.  Amador  Co.,  35  Cal.  624.) 

If  an  equitable  claim  exists  in  favor  of  one  county  against 
another  arising  out  of  the  erection  of  a  new  county  out  of  ter- 
ritory taken  in  part  from  one  county,  the  legislature  may  com- 
pel the  board  of  supervisors  of  the  county  indebted  to  levy  a 
special  tax  to  pay  the  same.  (People  v.  Alameda  Co.,  26  Cal. 
641.) 

Upon  the  division  of  a  county,  with  an  agreed  basis  of  ap- 
portionment of  assets,  which  did  not  include  prior  unpaid  rail- 
road taxes,  the  validity  of  which  were  disputed,  and  which  were 
subsequently  reassessed  to  each  of  the  counties  upon  the  basis 
of  their  respective  railroad  mileage,  the  original  county  may 
recover  from  the  new  county  at  least  the  difference  between  the 
amount  received  by  the  old  county  and  the  amount  it  would 


301  CONSTITUTION  OF  1879.  Art.  XI,  §  4 

have  reeeivecl  upon  the  agreed  basis  of  apportionment.  (San 
Diego  Co.  V.  Riverside  Co.,  125  Cal.  495,  58  Pac.  81.) 

The  prohibition  against  uniting  parts  of  different  counties  in 
forming  any  legislative  district,  contained  in  section  6  of 
article  4  of  the  constitution,  limits  the  power  of  the  legislature 
in  framing  the  general  law  for  the  decennial  apportiomnent, 
but  does  not  affect  its  power,  included  in  the  general  grant  of 
legislative  power  contained  in  section  1  of  article  4,  to  alter 
county  boundaries  from  time  to  time  as  it  may  deem  best. 
(Wheeler  v.  Herbert,  152  Cal.  224,  92  Pac.  353.) 

The  legislature  is  not  prohibited  from  changing  by  special 
act  the  boundaries  between  two  or  more  counties,  leaving  all 
of  them  existing  as  political  subdivisions  of  the  state  as  before. 
Such  power  was  vested  in  the  legislature  before  the  amendment 
of  1894,  and  the  amendment  did  not  change  the  section,  in  this 
respect.     (Wheeler  v.  Herbert,  152  Cal.  224.) 

County  governments  to  be  uniform,  under  general  laws. 

Sec.  4,  The  legislature  shall  establish  a  system  of 
county  governments  which  shall  be  uniform  throughout 
the  state;  and  by  general  laws  shall  provide  for  town- 
ship organization,  under  which  any  county  may  organ- 
ize whenever  a  majority  of  the  qualified  electors  of 
such  county,  voting  at  a  general  election,  shall  so  de- 
termine; and,  whenever  a  county  shall  adopt  township 
organization,  the  assessment  and  collection  of  the  rev- 
enue shall  be  made,  and  the  business  of  such  county 
and  the  local  affairs  of  the  several  townships  therein 
shall  be  managed  and  transacted  in  the  manner  pre- 
scribed by  such  general  laws. 

COUNTY  GOVERNMENT.— The  "system"  or  plan  for  the 
government  of  the  several  counties  must  be  uniform  so  that  its 
several  parts  shall  be  applicable  to  each  county.  (Welsh  v. 
Bramlet,  98  Cal.  219,  33  Pac.  6G.) 


Art.  XI,  §  4         CONSTITUTION  OF  1879.  302 

This  section  does  not  deprive  the  legislature  of  the  power  to 
pass  an  act  requiring  boards  of  supervisors  of  certain  named 
counties  to  issue  and  sell  county  bonds  for  the  improvement  of 
roads.     (People  v.  Supervisors,  50  Cal.  561.) 

A  provision  of  a  County  Government  Act  that  in  counties  of 
a  certain  class  county  licenses  collected  in  cities  shall  be  paid 
into  the  treasuries  of  such  cities  for  street  improvements  is  in 
violation  of  this  section.  (San  Luis  Obispo  v.  Graves,  84  Cal. 
71,  23  Pac.  1032.) 

A  provision  of  the  County  Government  Act  that  in  all  coun- 
ties of  one  particular  class  certain  additional  fees  shall  be  col- 
lected for  filing  the  inventory  in  estates  of  deceased  persons  is 
violative  of  this  section.  (Bloss  v.  Lewis,  109'  Cal.  493,  41  Pac. 
1081.) 

The  provisions  of  the  County  Government  Act  of  1893  em- 
powering certain  of  the  county  officers  in  counties  of  one  par- 
ticular class  to  appoint  a  certain  number  of  deputies,  whose 
salaries  are  fixed  by  the  act  and  made  payable  out  of  the 
county  treasury,  is  valid,  although  in  other  counties  the  prin- 
cipals must  pay  the  salaries  of  their  deputies.  (Tulare  Co.  v. 
May,  118  Cal.  303,  50  Pac.  427;  Freeman  v.  Barnum,  131  Cal. 
386,  82  Am.  St.  Eep.  355,  63  Pac.  691.  Welsh  v.  Bramlet,  98 
Cal.  219,  33  Pac.  66;  Walser  v.  Austin,  104  Cal.  128,  37  Pac.  869, 
overruled.) 

The  location  of  county  lines  is  a  political  question  to  be 
settled  by  the  legislature,  and  subject  to  change  from  time  to 
time  as  the  legislature  may  direct.  (Trinity  County  v.  Mendo- 
cino Co.,  151  Cal.  279,  90  Pac.  685.) 

TOWNSHIP  GOVERNMENT.— The  provision  of  this  section 
as  to  town  governments  is  not  self-executing,  and  the  legis- 
lature cannot  confer  upon  the  inhabitants  of  a  certain  territory, 
who  have  no  town  organization,  the  power  to  make  laws.  (Ex 
parte  Wall,  48  Cal.  279,  17  Am.  Rep.  425  ) 

The  township  government  established  by  the  County  Govern- 
ment Act  is  not  the  township  government  mentioned  in  this  sec 
tion.  (Longan  v.  Solano  Co.,  65  Cal.  122,  3  Pac.  463;  Ex  parte 
Wall,  48  Cal.  279,  17  Am.  Rep.  425.) 

The  legislature  never  has  established  towns  within  the  mean- 
ing of  the  constitution.  (Ex  parte  Wall,  48  Cal.  279,  17  Am. 
Rep.  425.) 


303  Constitution  of  1879.         Art.  XI,  §  5 

Boards  of  supervisors,  election  and  appointment  of. 

Sec.  5.  The  legislature,  by  general  and  uniform 
laws,  shall  provide  for  the  election  or  appointment,  in 
the  several  counties,  of  boards  of  supervisors,  sheriffs, 
county  clerlvs,  district  attorneys,  and  such  other  county, 
township,  and  municipal  officers  as  public  convenience 
may  require,  and  shall  prescribe  their  duties  and  fix 
their  terms  of  office.  It  shall  regulate  the  compensation 
of  all  such  officers,  in  proportion  to  duties,  and  may  also 
establish  fees  to  be  charged  and  collected  by  such  offi- 
cers for  services  performed  in  their  respective  offices, 
in  the  manner  and  for  the  uses  provided  by  law,  and 
for  this  purpose  may  classify  the  counties  by  popula- 
tion ;  and  it  shall  provide  for  the  strict  accountability 
of  county  and  township  officers  for  all  fees  which  may 
be  collected  by  them,  and  for  all  public  and  municipal 
moneys  which  may  be  paid  to  them,  or  officially  come 
into  their  possession.  It  may  regulate  the  compensa- 
tion of  grand  and  trial  jurors  in  all  courts  within  the 
classes  of  counties  herein  permitted  to  be  made;  such 
compensation,  however,  shall  not,  in  any  class,  exceed 
the  sum  of  three  dollars  per  day  and  mileage.  (Amend- 
ment adopted  November  3,  1908.) 

[ORIGINAL  SECTION.] 
Sec.  5.     The  legislature,  by  general  and  uniform  laws,  shall 
provide  for  the   election  or  appointment,  in  the  several   coun- 
ties,  of  boards    of   supervisors,   sheriffs,   county   clerks,    district 
attorneys,  and  such  other  county,  township,  and  municipal  offi- 


Art.  XI,  §  5         CONSTITUTION  OF  1879.  304 

cers  as  public  convenience  may  require,  and  sball  prescribe  their 
duties,  and  fix  their  terms  of  office.  It  shall  regulate  the  com- 
pensation of  all  such  officers,  in  proportion  to  duties,  and  for 
this  purpose  may  classify  the  counties  by  population;  and  it 
shall  provide  for  the  strict  accountability  of  county  and  town- 
ship officers  for  all  fees  which  may  be  collected  by  them,  and 
for  all  public  and  municipal  moneys  which  may  be  paid  to 
them,  or  officially  come  into  their  possession. 

COUNTY  OFFICERS.— Under  the  former  constitution  it  was 
held  that  the  provision  requiring  a  uniform  system  of  county 
government  was  merely  directory.  (People  v.  Lake  Co.,  33  Cal. 
487.) 

But  the  provision  of  the  present  constitution  is  mandatory, 
gives  to  the  legislature  exclusive  authority  to  provide  for  the 
officers  in  the  several  counties,  and  to  fix  their  terms  and  duties, 
provides  that  this  must  be  done  "by  general  and  uniform  laws," 
and  that  such  laws  must  be  uniformly  applicable  to  all  the 
counties  of  the  state.  (Welsh  v.  Bramlet,  98  Cal.  219,  33  Pac. 
66.) 

The  legislature  cannot  delegate  the  power  given  it  by  this 
section.     (People  v.  Wheeler,  136  Cal.  652,  69  Pac.  435.) 

A  statute  providing  for  a  system  of  county  government, 
which  in  its  terms  is  limited  to  a  portion  of  the  state,  is  in 
violation  of  this  section.  (Hale  v.  McGettigan,  114  Cal.  112, 
45  Pac.  1049.) 

Under  this  provision  of  the  constitution,  and  the  general 
laws  therein  provided  for,  the  burden  of  prosecuting  offenses 
against  state  laws  and  county  ordinances  is  to  be  borne  by  the 
state  or  county  and  cannot  be  imposed  upon  a  city  because  such 
prosecutions  are  to  be  conducted  within  its  limits.  (Fleming 
v.  Hance,  153  Cal.  162,  94  Pac.  620.) 

Election  of  officers. — It  seems  that  under  this  section  the  leg- 
islature has  power  to  provide  that  all  county  officers  shall  be 
appointed  instead  of  elected.     (Barton  v.  Kalloch,  56  Cal.  95.) 

The  constitution  does  not  fix  the  term  of  these  officers,  but 
merely  directs  that  the  legislature  shall  provide  for  their  elec- 
tion by  the  people  and  shall  fix  by  law  the  duties  and  compen- 
sation.    (People  V.  Brown,  16  Cal.  441.) 


305  CONSTITUTION  OF  1879.         Art.  XI,  §  5 

When  tbe  constitution  declares  an  office  to  be  elective  it  can- 
not be  filled  in  any  other  mode,  but  when  it  has  been  filled  by 
election,  the  legislature  may  extend  the  term  of  the  incumbent. 
(Christy  v.  Supervisors,  39  Cal.  3.) 

There  is  nothing  in  the  constitution  which  requires  that  a 
person  elected  district  attorney  shall  be  admitted  to  the  bar. 
(People  V.  Dorsey,  32  Cal.  296.) 

The  sheriff  as  such  cannot  perform  the  duties  of  tax  collector. 
(Lathrop  v.  Brittain,  30  Cal.  680.) 

The  legislature  is  not  prohibited  from  creating  more  than  one 
revenue  district  in  a  county,  and  providing  for  the  election  of 
assessor  and  tax  collector  in  each  district.  (People  v.  Central 
Pac.  E.  R.  Co.,  43  Cal.  398.) 

An  act  authorizing  the  district  attorney  of  a  county  to  bring 
suit  in  the  name  of  the  people  to  recover  delinquent  taxes  does 
not  interfere  with  the  constitutional  duties  of  the  tax  collector. 
(People  V.  Central  Pac.  R.  R.  Co.,  43  Cal.  39S.) 

The  term  "assessor"  does  not  necessarily  mean  an  officer 
whose  valuations  are  final.  (Savings  etc.  Soc.  v.  Austin,  46 
Cal.  415.) 

Compensation. — This  section  only  authorizes  one  mode  of  fix- 
ing the  compensation  of  officers,  and  that  is  to  adjust  the  com- 
pensation in  accordance  with  their  respective  duties,  under  a 
classification  of  counties  by  population  made  for  this  purpose. 
(Knight  V.  Martin,  128  Cal.  245,  60  Pac.  849;  Dwyer  v.  Parker, 
115  Cal.  544,  47  Pac.  372.) 

The  legislature  has  power  to  provide  for  but  one  salary  as 
an  incident  to  a  county  office.  (Tout  v.  Blair,  3  Cal.  App.  180, 
84  Pac.  671.) 

The  legislature  has  power  to  provide  that  the  salary  attached 
to  a  public  office  shall  be  an  incident,  not  to  the  title  of  the 
office,  but  to  its  occupation  and  exercise.  (Tout  v.  Blair,  3  Cal. 
App.  180,  84  Pac.  671;  Alerkley  v.  Williams,  3  Cal.  App.  268, 
84  Pac.  1015.) 

The  sole  purpose  of  the  classification  provided  for  by  this 
section  is  of  regulating  the  compensation  of  the  officers  in  pro- 
portion to  their  duties.  A  classification  for  any  other  purpose 
is  void.  (San  Luis  Obispo  v.  Graves,  84  Cal.  71,  23  Pac.  1032; 
Constitution — 20 


Art.  XI,  §  5         CONSTITUTION  OF  1879.  806 

San  Francisco  v.  Broderick,  125  Cal.  188,  57  Pac.  887;  Turner 
V.  Siskiyou  Co.,  109  Cal.  332,  42  Pac.  434.*) 

The  salaries  and  fees  allowed  by  the  County  Government  Act 
are  in  full  compensation  for  all  services,  and  the  fees  collected 
by  the  treasurer  for  collecting  the  collateral  inheritance  tax 
cannot  be  retained  by  him  for  his  own  use,  (San  Diego  v. 
Schwartz,  145  Cal.  49,  78  Pac.  231.) 

An  act  creating  a  class  of  counties  and  designating  it  by 
population  arbitrarily,  and  without  reference  to  the  classifica- 
tion contained  in  the  general  law,  is  in  violation  of  this  section. 
(San  Francisco  v.  Broderick,  125  Cal.  188,  57  Pac.  887.) 

A  provision  of  the  fee  bill  allowing  justices  of  the  peace  a 
certain  portion  of  the  fees  collected  by  them  as  their  compensa- 
tion, irrespective  of  the  classification  contained  in  the  County 
Government  Act,  is  invalid.  (Dwyer  v.  Parker,  115  Cal.  544, 
47  Pac.  372;  Keid  v.  Groezinger,  115  Cal.  551,  47  Pac.  374.) 

An  act  allowing  justices  of  the  peace  different  fees  for  the 
same  services  in  townships  classified  according  to  population  is 
in  violation  of  this  section.  (Tucker  v.  Barnum,  144  Cal.  2G6, 
77  Pac.  919.) 

The  act  of  1893  providing  a  special  method  of  collecting  fees 
in  cities  and  counties  of  over  one  hundred  thousand  inhabitants 
is  in  violation  of  this  provision.  (Rauer  v.  Williams,  118  Cal. 
401,  50  Pac.  691.) 

The  legislature  is  not  directed  to  regulate  the  compensation 
in  accordance  with  the  classification  of  the  counties  by  popula- 
tion, but  in  proportion  to  duties,  and  as  a  means  of  doing  that 
it  is  authorized  to  classify  the  counties  according  to  population. 
(Longan  v.  Solano  Co.,  65  Cal.  122,  3  Pac.  463;  Welsh  v.  Bram- 
let,  98  Cal.  219,  33  Pac.  66.) 

What  compensation  of  an  oflScer  should  be  deemed  "in  pro- 
portion to  his  duties"  is  a  matter  of  fact  to  be  ascertained  and 
determined  by  the  legislature,  and  not  by  the  courts.  (Green 
V.  Fresno  Co.,  95  Cal.  329,  30  Pac.  544.) 

*In  considering  the  subject  of  classification,  it  must  be  re- 
membered that,  while  counties  can  only  be  classified  for  the 
purpose  above  mentioned,  cities  and  towns  may  be  classified 
according  to  population  for  any  purpose.  (See  note  to  next 
section.) 


307  CONSTITUTION  OF  1879.         Art.  XI,  §  5 

This  section  does  not  prevent  the  legislature  from  allowing 
county  officers  the  fees  collected  in  lieu  of  salaries.  (San  Luis 
Obispo  V.  Drake,  76  Cal.  92,  18  Pac.  118;  Green  v.  Fresno  Co., 
95  Cal.  329,  30  Pac.  544.  But  see  Kern  Co.  v.  Fay,  131  Cal.  547, 
63  Pac.  857.) 

The  legislature  may  provide  that  some  county  officers  shall 
receive  fees  or  per  diem,  and  that  others  shall  receive  regular 
salaries.     (Vail  v.  San  Diego  Co.,  126  Cal.  35,  58  Pac.  392.) 

The  legislature  cannot  change  the  measure  of  compensation 
of  officers  fixed  by  the  County  Government  Act  otherwise  than 
by  amendment  of  it,  preserving  the  standard  fixed  by  the  con- 
stitution of  the  classification  of  counties  by  population  for  the 
purpose  of  fixing  the  compensation  of  officers.  (Kiernan  v. 
Swan,  131  Cal.  410,  63  Pac.  768.) 

A  law  fixing  the  compensation  of  officers  in  all  counties  of  a 
certain  class  is  valid.  (Summerland  v.  Bicknell,  111  Cal.  567, 
44  Pac.  232.) 

The  duty  of  regulating  the  compensation  of  all  county  officers 
in  proportion  to  duties  cannot  be  delegated  to  boards  of  super- 
visors. (Dougherty  v.  Austin,  94  Cal.  601,  28  Pac.  834,  29  Pac. 
1092,  16  L.  R.  A.  161;  People  v.  Johnson,  95  Cal.  471,  31  Pac. 
611.) 

Classification. — There  is  no  limit  to  the  number  of  classes  of 
counties  that  the  legislature  may  make.  (Longan  v.  Solano,  65 
Cal.  122,  3  Pac.  463.) 

The  legislature  can  only  classify  counties,  for  the  purpose  of 
fixing  salaries  of  county  officers.  Official  reporters  of  the  su- 
perior courts  are  not  such  officers.  (Pratt  v.  Browne,  135  Cal. 
649,  67  Pac.  1082.) 

The  legislature  may  classify  townships  as  well  as  counties  by 
population  for  the  purpose  of  regulating  the  compensation  of 
township  officers.  (Tucker  v.  Barnum,  144  Cal.  266,  77  Pac. 
919;  McCauIey  v.  Culbert,  144  Cal.  276,  77  Pac.  923.  But  see 
Sanchez  v.  Foidyce,  141  Cal.  427,  75  Pac.  56.) 

The  provision  of  the  County  Government  Act  that,  when  the 
population  of  an.  existing  county  shall  be  reduced  by  reason  of 
the  creation  of  a  new  county  from  the  territory  thereof,  below 
tlie  class  first  assumed  under  that  act,  it  should  be  the  duty  of 
the  supervisors  of  such  county  to  designate  the  class  to  which 
such  county  has  been  reduced,  is  not  in  conflict  with  this  sec- 
tion.    (Kumler  v.  Supervisors,  103  Cal.  393,  37  Pac.  383.) 


Art.  XI,  §  5         CONSTITUTION  OF  1879.  308 

The  courts  will  take  judicial  notice  of  the  population  of 
cities  and  towns  as  shown  by  the  United  States  census  returns, 
(People  V.  Wong  Wang,  92  Cal.  277,  28  Pac.  270;  People  v.  Will- 
iams, 64  Cal.  87,  27  Pac.  939;  Welsh  v.  Bramlet,  98  Cal.  219,  33 
Pac.  G6.) 

A  county  of  a  particular  class  is  not  ipso  facto  made  a  county 
of  another  class  merely  by  the  effect  of  a  new  census,  but  it 
remains  in  its  original  class  until  reorganized  by  the  board  of 
supervisors.  (Hull  v.  Superior  Court,  63  Cal.  174,  per  McKin- 
stry,  J.) 

As  to  when  a  city  of  one  class  passes  from  one  class  to  an- 
other, see  Ex  parte  Halstead,  89  Cal.  471,  26  Pac.  961. 

The  legislature  has  no  power  to  arbitrarily  place  any  par- 
ticular county  in  any  particular  clcss.  But  where  the  legis- 
lature declares  that  a  particular  nev/ly  formed  county  shall 
belong  to  a  particular  class,  it  will  be  assumed  that  the  legis- 
lature thereljy  determined  the  population  of  such  county. 
(Sanders  v.  Sehorn,  98  Cal.  227,  33  Pac.  58;  People  v.  McFad- 
den,  81  Cal.  489,  15  Am.  St.  Rep.  66,  22  Pac.  851.) 

The  legislature  may  pass  a  law  regulating  the  compensation 
of  township  officers  in  counties  of  any  one  class.  (Johnson  v. 
Gunn,  148  Cal.  745,  84  Pac.  665.) 

Under  the  act  of  1901,  amending  the  County  Government  Act 
and  classifying  townships  according  to  population  as  fixed  by 
the  last  federal  census,  a  townsliip  created  after  that  census 
and  whose  population  cannot  be  determined  thereby  is  not  gov- 
erned by  that  classification.  (Chinn  v.  Gunn,  148  Cal.  755,  84 
Pac.  6C9.) 

The  adjustment  of  compensation  of  justices  of  the  peace  by 
salaries  in  large  cities,  and  fees  in  smaller  cities,  towns  and 
nonurban  communities  proceeds  upon  intrinsic  differences  and  is 
constitutional.  (Summerfield  V.  l)ow,  5  Cal.  App.  678,  91  Pac. 
156.) 

Particular  acts. — A  provision  of  the  County  Government  Act 
conferring  power  upon  the  supervisors  to  authorize  the  district 
attorney  of  any  county  to  appoint  an  assistant,  who  shall  re- 
ceive a  compensation  fixed  by  the  act,  is  void.  (Knight  v. 
Martin,  128  Cal.  245,  60  Pac.  849.) 

The  provision  of  the  County  Government  Act  of  1893,  em- 
powering certain  officers  of  counties  of  one  class  to  appoint  a 
certain  number  of  deputies,  whose  salaries  are  fixed  by  the  act, 


309  CONSTITUTION  OF  1879.         Art,  XI,  §  5 

and  made  payaWe  out  of  the  county  treasury,  is  valid,  although 
in  other  counties  the  principals  must  pay  the  salaries  of  their 
deputies.  (Tulare  County  v.  May,  118  Cal.  303,  50  Pac.  427. 
Welsh  V.  Bramlet,  98  Cal.  219,  33  Pac.  66;  Walser  v.  Austin,  104 
Cal.  128,  37  Pac.  869,  overruled.) 

A  provision  of  the  County  Government  Act  providing  for 
biennial  election  of  county  officers  in  counties  of  one  particular 
class  is  void.     (Hale  v.  McGettigan,  114  Cal.  112,  45  Pac.  1049.) 

This  section  does  not  authorize  the  Primary  Election  Law  of 
1895,  which  is  expressly  confined  in  its  operation  to  counties  of 
the  first  and  second  class.  (Marsh  v.  Supervisors,  111  Cal.  308, 
43  Pac.  975.) 

This  section  does  not  authorize  the  collection  in  counties  of 
one  particular  class  of  a  percentage  upon  the  inventory  value 
of  the  estate  for  filing  the  inventory.  (Bloss  v.  Lewis,  109  Cal. 
493,  41  Pac.  1081.) 

Section  726  of  the  Code  of  Civil  Procedure,  conferring  upon 
the  court  authority  to  appoint  commissioners  to  sell  mortgaged 
property,  does  not  violate  this  provision.  (McDermot  v.  Bar- 
ton, 106  Cal.  194,  39  Pac.  538.) 

The  provision  of  section  1770  of  the  Political  Code  as  to  the 
compensation  of  members  of  county  boards  of  education  is 
valid.     (Thorn  v.  Los  Angeles,  136  Cal.  375,  69  Pac.  18.) 

The  board  of  supervisors  of  a  county  have  no  power  to  create 
the  office  of  license  tax  collector  for  the  county.  (El  Dorado 
Co.  V.  Meiss,  100  Cal.  268,  34  Pac.  716;  Los  Angeles  Co.  v. 
Lopez,  104  Cal.  257,  38  Pac.  42.  People  v.  Ferguson,  65  Cal. 
288,  4  Pac.  4,  overruled.) 

There  is  nothing  in  the  constitution  prohibiting  the  legis- 
lature from  conferring  upon  the  beards  of  supervisors  of  one 
county  the  power  to  lay  out,  open,  and  maintain  a  road  in  an- 
other county.     (People  v.  Lake  Co.,  33  Cal.  487.) 

The  provision  of  the  County  Government  Act  requiring  as- 
sessors in  counties  of  one  particular  class  to  pay  all  percent- 
ages for  the  collection  of  poll  taxes  into  the  county  treasury  ia 
valid.     (Summerland  v.  Bicknell,  11  Cal.  567,  44  Pac.  232.) 


Art.  XI,  §  6         CONSTITUTION  OF  1879.  310 

Municipal  corporations  to  be   controlled  by  general 
laws. 

See.  6.  Corporations  for  municipal  purposes  shall 
not  be  created  by  special  laws;  but  the  legislature,  by 
general  laws,  shall  provide  for  the  incorporation,  or- 
ganization, and  classification,  in  proportion  to  popula- 
tion, of  cities  and  towns,  which  laws  may  be  altered, 
amended,  or  repealed.  Cities  and  towns  heretofore 
organized  or  incorporated  may  become  organized  un- 
der such  general  laws  whenever  a  majority  of  the 
electors  voting  at  a  general  election  shall  so  determine, 
and  shall  organize  in  conformity  therewith;  and  cities 
and  towns  heretofore  or  hereafter  organized,  and  all 
charters  thereof  framed  or  adopted  by  authority  of  this 
constitution,  except  in  municipal  affairs,  shall  be  sub- 
ject to  and  controlled  by  general  laws.  (The  words 
"except  in  municipal  affairs"  inserted  by  amendment 
adopted  November  3,  1896.) 

MUNICIPAL  CORPOEATIONS.— The  constitution  does  not, 
ex  proprio  vigore,  create  or  establish  any  local,  county  or 
municipal  governments.      (People   v.   Provines,   34   Cal.  520.) 

Neither  does  it  abolish  the  municipalities  of  the  state.  (In 
re  Guerrero,  69  Cal.  88,  10  Pac.  261.) 

Under  the  constitution  of  1849  the  legislature  had  power  to 
create  a  municipal  corporation  by  a  special  law.  (People  v. 
Levee  Dist.  No.  6,  131  Cal.  30,  63  Pac.  676.) 

A  county  is  not  a  corporation  for  municipal  purposes  within 
the  meaning  of  this  section.  (People  v.  McFadden,  81  Cal.  489, 
15  Am.  St.  Rep.  66,  22  Pac.  851.) 

A  levee  district  is  not  a  municipal  corporation.  (People  T. 
Levee  Dist.  No.  6,  131  Cal.  30,  63  Pac.  676.) 


Art.  XI,  Sec.  6.    Insert  at  Page  310. 

See.  6.     Corporations   for  municipal  purposes  shall 
not  be   created  by  special  laws ;   but  the   legislature 
shall,  by  general  laws,  provide  for  the  incorporation, 
organization,  and  classification,  in  proportion  to  popu- 
lation, of  cities  and  towns,  wiiieh  laws  may  be  altered, 
amended,   or  repealed;   and   the   legislature   may,   by 
general  laws,  provide  for  the  performance  by  county 
officers  of  certain  of  the  municipal  functions  of  cities 
and  towns  so  incorporated,  whenever  a  majority  of  the 
electors  of  any  such  city  or  town  voting  at  a  general 
or    special    election    shall    so    determine.     Cities    and 
towns  heretofore   organized  or  incorporated  may  be- 
come   organized   under   the    general    laws   passed   for 
that  purpose,  whenever  a  majority  of  the  electors  vot- 
ing at  a  general  election  shall  so  determine,  and  shall 
organize  in  conformity  therewith.     Cities  and  towns 
hereafter     organized     under     charters     framed     and 
adopted  by  authority  of  this  constitution  are  hereby 
empowered,  and  cities  and  towns  heretofore  organized 
'hy    authority    of   this    constitution   may    amend    their 
charters  in  the  manner  authorized  by  this  constitution 
so   as   to   become    likewise   empowered   hereunder,    to 
make  and  enforce  all  laws  and  regulations  in  respect 
to  municipal   affairs,   su])ject  only  to  the  restrictions 
and  limitations  pi-ovided  in  their  several  charters,  and 
in  respect  to  other  matters  they  shall  be  subject  to 
and    controlled   by    general   laws.     Cities    and    towns 
heretofore  or  hereafter  organized  by  authority  of  this 
constitution  may,  by  charter  provision  or  amendment, 
provide  for  the  performance  by  county  officers  of  cer- 
tain of  their  municipal  functions,  whenever  the  dis- 


charge  of  such  municipal  functions  by  county  officers 
is  authorized  by  general  laws  or  by  the  provisions  of 
a  county  charter  framed  and  adopted  by  authority  of 
this  constitution.  (Amendment  adopted  November  3, 
1914.) 


311  CONSTITUTION  OP  1879.         Art.  XI,  §  6 

The  Sacramento  Drainage  District  organized  under  the  act 
of  1905  is  not  a  corporation  organized  for  municipal  purposes. 
(People  V.  Sacramento  Drainage  Dist.,  155  Cal.  373,  103  Pac. 
207.) 

Reclamation  districts  are  not  municipal  corporations  within 
the  meaning  of  this  section.  (Reclamation  District  No.  70  v. 
Sherman,  11  Cal.  App.  399,  105  Pac.  277.) 

An  irrigation  district  is  a  public  corporation.  (People  v. 
Selma  Irr.  Dist.,  98  Cal.  206,  32  Pac.  1047.) 

Municipal  corporations  are  not  limited  to  cities  and  towns; 
but  the  legislature  may  by  general  laws  classify  and  provide 
for  as  many  species  of  municipal  corporations  as,  in  its  judg- 
ment, are  demanded  by  the  welfare  of  the  state.  (In  re  Ma- 
dera Irr.  Dist.,  92  Cal.  296,  27  Am.  St.  Eep.  106,  28  Pac.  272,  14 
L.  R.  A.  755.) 

Consolidated  cities  and  counties  are  municipal  corporations 
within  the  meaning  of  this  section.  (Denman  v.  Broderick,  111 
Cal.  96,  43  Pac.  516.) 

A  reclamation  district  is  a  public  corporation  for  municipal 
purposes,  and  under  the  old  constitution  might  be  created  by 
special  act.  (Swamp  Land  Dist.  No.  150  v.  Silver,  98  Cal.  51, 
32  Pac.  866.) 

The  term  "municipal"  is  limited  to  "governmental,"  and  can- 
not be  extended  to  commercial  purposes.  (Low  v.  Marysville, 
5  Cal.  214.) 

Municipal  corporations  are  but  subordinate  subdivisions  of 
the  state,  which  may  be  created,  altered,  or  abolished  at  the 
will  of  the  legislature,  which  may  enlarge  or  restrict  their 
powers,  direct  the  mode  of  their  exercise,  and  define  what  acts 
they  may  or  may  not  perform,  subject  to  the  limitation  that  the 
legislature  cannot  direct  the  performance  of  an  act  which  will 
impair  the  obligations  of  a  contract.  (San  Francisco  v.  Cana- 
van,  42  Cal.  541.) 

Classification. — Tlie  object  of  classifying  municipal  corpora- 
tions according  to  population,  and  in  preventing  their  creation 
by  special  laws,  was  to  avoid  the  necessity  of  special  legisla- 
tion.    (People  V.  Henshaw,  76  Cal.  436,  18  Pac.  413.) 

This  section  does  not  limit  the  power  of  classification  to  pur- 
poses of  the  incorporation  and  organization  of  municipalities, 
but  empowers  the  jcgishiturc  to  classify  for  the  purpose  of  sup- 
plying the  general  laws  required  by  the  varying  needs  of  tho 


Art.  XI,  §  6         CONSTITUTION  OF  1879.  312 

municipalities  so  classified.  (Eauer  v.  Williams,  118  Cal,  401, 
50  Pac.  691.) 

The  power  to  classify  conferred  by  this  section  is  not  limited 
strictly  to  purposes  of  incorporation  and  organization,  (Union 
Ice  Co.  V.  Rose,  11  Cal.  App.  357,  104  Pac.  100<3.) 

But  a  law  providing  the  conditions  and  mode  of  exercising 
the  power  of  eminent  domain  in  counties  of  one  particular  class 
is  not  authorized  by  this  section.  (Pasadena  v.  Stimson,  91 
Cal.  238,  27  Pac.  604.) 

Classification  must  be  founded  on  some  constitutional  or  nat- 
ural distinction,  and  must  not  be  arbitrary.  (Darcy  v.  Mayor, 
104  Cal.  642,  38  Pac.  500.) 

The  classification  mentioned  in  this  section  is  one  that  will 
include  all  cities  and  towns.     (Desmond  v.  Dunn,  55  Cal.  242.) 

The  "McClure  Charter"  was,  therefore,  held  unconstitutional, 
because  it  excluded  from  its  operation  all  municipal  corpora- 
tions, except  consolidated  city  and  county  governments,  and  be- 
cause it  was  also  limited  to  municipal  corporations  of  over  one 
hundred  thousand  inhabitants,  making  no  provision  for  those 
having  less   population.      (Desmond  v.  Dunn,  55  Cal.   242.) 

An  act  classifying  all  municipal  corporations  in  the  state  into 
six  classes  according  to  population  is  a  general  law.  (Pritchett 
V.  Stanislaus  Co.,  73  Cal.  310,  14  Pac.  795.) 

An  act  directed  at  and  applicable  to  one  particular  named 
municipal  corporation,  which  takes  away  a  large  part  of  its 
territory,  is  special  and  local.  (People  v.  Common  Council,  85 
Cal.  369,  24  Pac.  727.) 

An  act  applying  to  the  organization  of  one  particular  class 
of  municipal  corporations  is  valid.  (Mintzer  v.  Schilling,  117 
Cal.  361,  49  Pac.  209.) 

While  the  legislature  cannot  pass  laws  touching  the  organiza- 
tion and  incorporation  of  municipalities  except  by  conforming 
to  the  requirements  of  the  classification  act,  upon  other  matters 
it  may  pass  general  and  uniform  laws  applicable  either  to 
municipal  corporations  of  a  given  class  or  to  all  of  a  separate 
class  created  by  and  designated  in  the  act  itself,  provided  some 
plain  reason  appears  for  the  limitation  to  a  class,  where  the 
law  does  not  apply  to  all  municipalities  witliin  the  same  general 
category.     (Rauer  v.  Williams,  118  Cal.  401,  50  Pac.  691.) 

The  act  of  1893,  providing  a  special  method  of  collecting  fees 
in  cities   and  counties  of  over   one  hundred   thousand  inhabit- 


313  CONSTITUTION  OP  1879.         Art.  XI,  §  6 

ants,  although  in  accordance  with  the  general  classification  of 
cities,  is  not  authorized  by  this  section,  since  it  only  applies  to 
one  class  without  reason  why  it  should  not  apply  to  all.  (Rauer 
V.  Williams,  118  Cal.  401,  50  Pac.  691.) 

The  act  of  1891  creating  police  courts  in  cities  having  fifteen 
thousand  and  under  eighteen  thousand  inhabitants,  not  being 
in  conformity  with  the  general  classification  of  municipal  cor- 
porations, is  void.  (Ex  parte  Giambonini,  117  Cal.  573,  49  Pac. 
732.) 

Section  3678  of  the  Political  Code,  authorizing  the  board  of 
supervisors  to  provide  for  additional  clerical  force  to  enable  the 
recorder  to  assist  the  assessor  in  the  performance  of  his  duties, 
violates  this  section.  (Agard  v.  Shaffer,  141  Cal.  725,  75  Pac. 
343.) 

An  act  providing  for  boards  of  election  commissioners  in 
cities  and  counties  and  counties  having  one  hundred  and  fifty 
thousand  or  more  inhabitants  is  void  as  an  attempt  to  create  a 
class  of  municipal  corporations  for  a  special  purpose,  without 
reference  to  the  existing  classification  by  general  law.  (Den- 
man  V.  Broderick,  111  Cal.  96,  43  Pac.  510.) 

The  legislature  cannot  by  a  special  act  create  a  class  of  cities 
by  population  of  between  ten  thousand  and  twenty-five  thou- 
sand, for  the  purpose  of  increasing  the  salaries  of  policemen  in 
a  particular  city.     (Darcy  v.  Mayor,  104  Cal.  642,  38  Pac.  500.) 

As  to  when  a  city  of  one  class  passes  from  one  class  to  an- 
other, see  Ex  parte  Halsted,  89  Cal.  471,  26  Pac.  961. 

Formation. — The  provision  requiring  that  a  "majority  of  the 
electors  voting  at  a  general  election"  must  determine  the  ques- 
tion of  organization  imports  that  a  majority  of  all  the  electors 
voting  at  the  election  is  necessary  to  carry  the  proposition,  and 
not  simply  a  majority  of  all  the  electors  who  vote  upon  the 
proposition.  (People  v.  Berkeley,  102  Cal,  298,  36  Pac.  591,  23 
L.  K.  A.  838.) 

In  the  absence  of  statutory  provisions  as  to  the  ownership  of 
property  belonging  to  a  school  district  annexed  to  a  city,  real 
estate  belongs  to  the  municipality  within  which  it  is  located 
as  the  result  of  the  annexation.  (Vernon  etc.  Dist.  v.  Board  of 
Education,  125  Cal.  593,  58  Pac.  175.) 

An  act  providing  for  the  annexation  of  territory  to  a  city 
upon  petition  of  electors  of  the  municipality,  to  the  exclusion 
of  the  annexed  territory,  is  valid,  if  the  residents  of  the  an- 


Art.  XI,  §  6         CONSTITUTION  OF  1879.  314 

nexed  territory  are  fully  protected  by  requiring  a  majority  of 
the  voters  thereof  to  authorize  the  annexation.  (Vernon  etc. 
Dist.  V.  Board  of  Education,  125  Cal.  593,  58  Pac.  175.) 

The  legislature  may  delegate  to  municipal  boards  the  power 
and  discretion  to  say  whether  a  railroa-d.  shall  be  laid  in  the 
streets,  and  when  and  under  what  conditions.  (Areata  v.  Ar- 
eata etc.  R.  R.  Co.,  92  Cal.  639,  28  Pac.  676.) 

Where  territory  is  excluded  from  a  municipal  corporation, 
the  legislature  may  adjust  the  burden  of  the  corporate  debt. 
(Johnson  v.  San  Diego,  109  Cal.  468,  42  Pac.  249,  30  L.  R.  A. 
178.) 

An  act  providing  for  the  refunding  of  the  indebtedness  of 
municipal  corporations  other  than  cities  of  the  first  class  is 
authorized  by  this  section.  (Los  Angeles  v.  Teed,  112  Cal.  319, 
44  Pac.  580.) 

Cliarters. — City  charters,  except  as  to  municipal  affairs,  are 
subject  to  and  controlled  by  general  laws.  (Kennedy  v.  Board 
of  Education,  82  Cal.  483,  22  Pac.  1012;  People  v.  Henshaw,  76 
Cal.  436,  18  Pac.  413;  Ex  parte  Halsted,  89  Cal.  471,  26  Pac. 
961;  Davies  v.  Los  Angeles,  86  Cal.  37,  24  Pac.  771;  Ex  parte 
Ah  You,  82  Cal.  339,  22  Pac.  929;  In  re  Carrillo,  66  Cal.  3,  4 
Pac.  695;  Farmer  v.  Behmer,  9  Cal.  App.  773,  100  Pac.  901.) 

The  legislature  may  pass  general  laws  affecting  municipal 
corporations  without  reference  to  whether  such  corporations 
were  formed  before  or  after  the  constitution  of  1879,  (Marys- 
ville  V.  County  of  Yuba,  1  Cal.  App.  C34,  82  Pac.  975.) 

Prior  to  the  amendment  of  1896,  the  only  exception  to  this 
rule  was  that  such  charters  were  not  subject  to  general  laws 
for  the  organization  and  incorporation  of  municipal  corpora- 
tions, such  as  the  Municipal  Corporation  Act*  (People  v.  Bag- 
ley,  85  Cal.  343,  24  Pac.  716.) 

This  provision  does  not  apply  where  there  is  no  general  law 
on  a  given  subject  to  which  the  charter  relates.  (People  v. 
Howard,  94  Cal.  73,  29  Pac.  485.) 

The  charters  of  consolidated  city  and  county  governments  are 
subject  to  the  control  of  general  laws.  (People  v.  Babcock,  114 
Cal!  559,  46  Pac.  818.) 

This  provision  is  not  to  be  construed  as  providing  that  char- 
ter provisions  shall  be  repealed  by  a  general  law  upon  the  same 
subject  matter,  but  only  that  the  operation  of  the  inconsistent 
charter    provision    shall    be    suspended    during    the    paramount 


315  CONSTITUTION  OF  1879.         Art.  XI,  §  6 

operation  of  the  general  law.  (Byrne  v.  Drain,  127  Cal.  663,  GO 
Pac.  433.) 

Cities  and  towns  incorporatecl  previously  to  the  new  consti- 
tution are  subject  to  and  controlled  by  general  laws  enacted  for 
the  organization  of  such  governments,  but  the  charters  of  such 
cities  and  towns  remain  in  force  until  a  majority  of  the  electors 
determine  to  become  organized  under  general  laws,  or  to  frame 
a  charter  for  their  own  government.  (Desmond  v.  Dunn,  53 
Cal.  242;  People  v.  Hammond,  66  Cal.  654,  6  Pac.  741;  People 
V.  Pond,  89  Cal.  141,  26  Pac.  648;  Ex  parte  Helm,  143  Cal.  553, 
77  Pac.  453.) 

A  municipality  by  its  charter  in  the  erection  of  schoolhouses 
and  the  issuance  of  bonds  therefor  can  only  run  current  with, 
and  never  counter  to,  the  general  laws  of  the  state  touching  the 
common  school  system.  (Los  Angeles  School  Dist.  v.  Longden, 
148  Cal.  380,  83  Pac.  246.) 

General  laws. — The  following  have  been  held  to  be  general 
laws  within  the  meaning  of  this  section,  and  to  be  superior  to 
city  charters:  The  Vrooman  Act,  providing  for  street  work  in 
municipalities  (Thomason  v.  Kuggles,  69  Cal.  465,  11  Pac.  20; 
Thomason  v.  Ashworth,  73  Cal.  73,  14  Pac.  615;  Anderson  v. 
De  Urioste,  96  Cal.  404,  31  Pac.  266);  the  Hartson  Act,  provid- 
ing for  the  election  of  county,  city  and  county,  and  township 
officers  in  the  even-numbered  years  (Staude  v.  Election  Commrs., 
61  Cal.  313);  the  provision  of  section  1001  of  the  Civil  Code, 
providing  for  the  acquisition  of  private  property  through  the 
exercise  of  the  right  of  eminent  domain  (Santa  Cruz  v.  Enright, 
95  Cal.  105,  30  Pac.  197);  the  provisions  of  the  Political  Code 
as  to  elections  (Fragley  v.  Phelan,  126  Cal.  383,  58  Pac.  923); 
subdivision  6  of  section  3617  of  the  Political  Code  (Security 
Sav.  etc.  Co.  v.  Hinton,  97  Cal.  214,  32  Pac.  3);  the  provision 
of  the  Political  Code  that  all  money  pertaining  to  the  public 
school  fund  shall  be  paid  into  the  county  treasury  (Kennedy 
v.  Miller,  97  Cal.  429,  32  Pac.  558);  the  act  of  1SS9,  providing 
for  changing  the  boundaries  of  cities  (People  v.  Coronado,  100 
Cal.  571,  35  Pac.  162).     See,  also,  note  to  section  25,  article  4. 

A  i)rovision  of  a  city  charter  fixing  the  time  during  which 
the  polls  are  to  be  open  during  a  municipal  election  is  not  in 
conflict  with  the  general  law,  which  only  refers  to  state  and 
county  elections.     (People  v.  Uill,  125  Cal,  16,  57  Pac.  669.) 


Art.  XI,  §  6         CONSTITUTION  OP  1879.  316 

The  provision  of  the  charter  of  Los  Angeles  requiring  con- 
tracts with  the  oity  to  be  in  writing  is  not  subject  to  the  pro- 
visions of  the  general  law  as  to  the  execution  of  contracts  in 
general.     (Frick  v.  Los  Angeles,  115  Cal.  512,  47  Pac.  250.) 

Notwithstanding  the  general  law  has  defined  an  obstruction 
to  a  sidewalk  a  public  nuisance  and  punishable  as  such,  a  city 
may  make  it  a  misdemeanor  to  fail  to  remove  an  obstruction 
to  a  sidewalk,  since  the  municipality  might  legalize  a  partial 
obstruction  of  a  street.  (Ex  parte  Taylor,  87  Cal.  91,  25  Pac. 
258.) 

A  provision  of  a  city  charter  prescribing  the  form  of  the 
complaint  in  all  actions  to  recover  city  taxes,  there  being  no 
provision  of  the  general  law  on  the  subject,  is  valid.  (Stockton 
V.  Insurance  Co.,  73  Cal.  621,  15  Pac.  314.) 

A  provision  of  a  city  charter  allowing  an  assessment  of  city 
taxes  after  the  first  Monday  in  March  was  not  superseded  by 
section  8  of  article  13  of  the  coustitution,  since  that  section 
only  has  reference  to  prospective  assessments.  (Stockton  v.  In- 
surance Co.,  73  Cal.  621,  15  Pac.  314.) 

Mimicipal  affairs. — The  amendment  to  this  section  in  1896  is 
retroactive  and  applies  to  all  existing  charters,  and  has  the 
effect  to  remove  the  paramount  control  of  general  laws  in  re- 
spect to  municipal  affairs,  and  to  restore  the  operation  of 
municipal  charters  in  respect  to  such  affairs.  (Byrne  v.  Drain, 
127  Cal.  663,  60  Pac.  433.) 

But  that  amendment  did  not  revive  provisions  of  charters 
which  were  void  when  enacted.  (Banaz  v.  Smith,  133  Cal.  102, 
65  Pac.  309;  German  Sav.  etc.  Soc.  v.  Ramish,  138  Cal.  120,  69 
Pac.  89,  70  Pac.  1067;  Ex  parte  Sweetman,  5  Cal.  App.  577,  90 
Pac.  1069.) 

In  other  words,  if  the  charter  when  adopted  treated  of  a 
municipal  affair  which  was  afterward  provided  for  by  the  gen- 
eral laws,  the  charter  provision  was  revived  by  the  amendment 
(Byrne  v.  Drain,  127  Cal.  663,  60  Pac.  433);  but  if  at  the  time 
of  the  adoption  of  the  charter  a  provision  thereof  was  incon- 
sistent with  the  general  laws,  it  was  void  and  was  not  revived 
by  the  amendment.  (Banaz  v.  Smith,  133  Cal.  102,  65  Pac. 
309.) 

Prior  to  the  amendment  to  this  section,  the  charter  of  the 
town  of  Berkeley  was  subject  to  general  laws,  and  a  provision 
therein  prescribing  a  penalty  for  selling  liquor  in  conflict  with 


317  CONSTITUTLON  OF  1879.         Art.  XI,  §  G 

the  Penal  Code  was  void.  (Ex  parte  Sweetman,  5  Cal.  App. 
577,  90  Pac.  1069.) 

The  exception  of  municipal  affairs  from  general  legislative 
control  is  to  be  construed  as  relating  wholly  to  cities  and  towns 
exercising  municipal  functions.  It  only  applies  to  San  Fran- 
cisco, so  far  as  it  exercises  municipal  functions  as  distinguished 
from  a  county,  and  the  power  of  the  legislature  to  enact  gen- 
eral laws  for  the  government  of  counties  as  such,  including 
San  Francisco,  remains  unaffected  and  unimpaired.  (Nicholl  v. 
Koster,  157  Cal.  416,  108  Pac.  302.) 

A  municipal  affair  is  one  which  refers  to  the  internal  business 
affairs  of  the  municipality,  (Fragley  v.  Phelan,  126  Cal.  383, 
58  Pac.  923.) 

The  election  of  a  board  of  freeholders  and  the  adoption  of  a 
charter  is  not  a  municipal  affair.  (Fragley  v.  Phelan,  126  Cal. 
383,  58  Pac.  923.) 

This  provision  does  not  prevent  the  annexation  of  additional 
territory  to  a  city  under  an  act  of  the  legislature,  with  the  con- 
sent of  the  municipality.  (People  v.  Oakland,  123  Cal.  598,  56 
Pac.  445.) 

Salaries  of  oHifcrs  of  the  police  and  fire  department  of  a  city 
are  municipal  affairs.  (Popper  v.  Broderick,  123  Cal.  456,  56 
Pac.  53.) 

The  control  of  the  almshouse  of  San  Francisco  is  a  municipal 
affair.      (Weaver  v.  Keddy,  135  Cal.  430,  G7  Pac.  683.) 

Municijial  charters  supersede  the  general  law  upon  municipal 
affairs.     (People  v.  Williamson,  135  Cal.  415,  67  Pac.  504.) 

The  functions  of  the  board  of  health  created  by  the  charter 
of  the  city  and  county  of  San  Fraucisco  are  municipal  affairs. 
(People  v.  Williamson,  135  Cal.  415,  67  Pac.  504.) 

Municipal  corporations  organized  unT.er  special  charters  are 
not  subject  to  general  laws  on  "municipal  affairs."  (Ex  parte 
Helm,  143  Cal.  553,  77  Pac.  453;  Ex  parte  Lemon,  143  Cal.  558, 
77  Pac.  455,  65  L.  R.  A.  946.) 

The  provision  of  section  3366  of  the  Political  Code  forbidding 
the  imposition  of  a  license  tax  for  the  purpose  of  revenue  deals 
with  a  municipal  affair.  (Ex  parte  Helm,  143  Cal.  553,  77  Pac. 
453;  Ex  parte  Lemon,  143  Cal.  558,  77  Pac.  455,  65  L.  R.  A.  916.) 

The  matter  of  the  registration  of  voters  for  a  municipal  elec- 
tion is  a  municipal  affair.  (People  v.  Worswick,  142  Cal.  71, 
75  Pac.  663.) 


Art.  XI,  §  G         CONSTITUTION  OP  1879.  318 

The  power  to  determine  boundaries  of  a  proposefl  town  can- 
not be  exercised  by  the  legislature,  but  must  be  exercised*  by 
subordinate  bodies,  (Vernon  v.  Supervisors,  142  Cal.  513,  76 
Pac.  253.) 

A  provision  in  a  city  charter  conferring  upon  it  power  to 
impose  license  taxes  for  the  purpose  of  revenue  relates  to  a 
"municipal  affair"  and  is  superior  to  the  general  law  forbidding 
such  taxes.     (Ex  parte  Braun,  141  Cal.  204,  74  Pac.  780.) 

The  school  system  is  a  matter  of  general  concern  and  not  a 
municipal  affair.  (Hancock  v.  Board  of  Education,  140  Cal. 
554,  74  Pac.  44.) 

The  payment  of  fees  of  jurors  in  criminal  actions  is  a  state 
affair.     (Jackson  v.  Bachr,  138  Cal.  26G,  71  Pac.  167.) 

A  county  affair  is  not  a  "municipal  affair."  (Popper  v.  Brod- 
erick,  123  Cal.  456,  461,  56  Pac.  53.) 

An  act  requiring  the  signature  of  the  mayor  to  the  tax  levy 
deals  with  a  municipal  affair.  (Morton  v.  Broderick,  118  Cal. 
474,  50  Pac.  644.) 

The  opening  of  streets  in  a  city  is  clearly  a  municipal  pur- 
pose. (Sinton  v.  Ashbury,  41  Cal.  525;  Byrne  v.  Drain,  127 
Cal.  663,  60  Pac.  433.) 

The  charter  of  the  city  and  county  of  San  Francisco  super- 
seded the  Park  and  Boulevard  Act,  as  that  act  related  to  a 
municipal  affair  and  was  inconsistent  with  the  charter.  (Fritz 
V.  San  Francisco,  132  Cal.  373,  64  Pac.  566.) 

The  municipality  is  governed  by  general  laws  as  to  municipal 
affairs  as  to  which  the  charter  is  silent.  (Fragley  v.  Phelan, 
126  Cal.  383,  58  Pac.  923.) 

Conceding  that  the  removal  of  municipal  officers  is  a  munici- 
pal affair,  that  cannot  affect  the  concurrent  jurisdiction  of  the 
superior  court  conferred  by  the  general  law.  (Coffey  v,  Su- 
perior Court,  147  Cal.  525,  82  Pac.  75.) 

Where  the  jurisdiction  under  the  charter  in  regard  to  a 
municipal  affair  is  left  nntrammeled,  unrestrained  and  uncon- 
trolled by  the  general  law,  both  may  stand.  (Coffey  v.  Superior 
Court,  147  Cal.  525,  82  Pac.  75.) 

The  issuance  of  bonds  for  the  repair  of  existing  schoolhouses 
and  for  new  schoolhouses  is  a  municipal  affair,  (Law  v,  San 
Francisco,  144   Cal.   384,  77  Pac.   1014.) 

The  authority  given  to  a  city  by  its  charter  to  issue  bonds 
for  the  erection  of  schoolhouses  within  the  city  as  a  "municipal 


319  CONSTITUTION  OF  1879.         Art.  XI,  §  6 

affair"  is  not  exehislve  of  the  power  conferred  iTpon  the  trustees 
of  the  school  district  comprising  the  city.  (Los  Angeles  School 
Dist.  V.  Lougden,  148  Cal.  380,  83  Pac.  246.) 

The  dispusition  of  fines  for  misdemeanors  punished  by  virtue 
of  the  state  law  is  not  a  municipal  affair.  (Marysville  v. 
County  of  Yuba,  1  Cal.  App.  (334,  82  Pac.  975.) 

The  act  of  1901  restricting  the  power  of  licensing  by  local 
legislative  bodies  for  purposes  of  regulation,  does  not  apply  to 
chartered  cities.     (In  re  Diehl,  8  Cal.  App.  51,  96  Pac.  98.) 

Upon  the  adoption  of  the  San  Francisco  charter  the  police 
pension  a<:t  of  1S99  (Stats.  1899,  p.  57)  ceased  to  be  operative 
in  that  city  and  county.  (Burke  v.  Board  of  Trustees,  4  Cal. 
App.  235,  87  Pac.  421.) 

The  removal  of  a  chief  of  police  of  a  city  is  a  municipal 
affair.     (Dinan  v.  Superior  Court,  6  Cal.  App.  217,  91  Pac.  806.) 

The  acquisition  of  waterworks  by  a  city  is  a  municipal  affair. 
(Cary  v.  BJodgett,  10  Cal.  App.  463,  1U2  Pac.  668.) 

The  adoption  of  the  initiative  and  referendum  is  a  municipal 
affair.  (In  re  Pfahler,  150  Cal.  71,  88  Pac.  270,  11  Ann.  Cas, 
911.) 

The  manner  of  enacting  municipal  ordinances  and  resolu- 
tions is  a  municipal  affair.  (In  re  Pfahler,  150  Cal.  71,  88 
Pac.  270,  11  Ann.  Cas.  911.) 

The  discussing  of  forms  of  vice  and  crime  which  are  both 
mala  in  se  and  mala  prohibita  cannot  be  classed  as  "municipal 
affairs."     (Farmer   v.  Behmer,  9  Cal.  App.  773,   100  Pac.  901.) 

The  extension  of  the  jurisdiction  of  the  superior  courts  to 
include  "probation"  work  (Juvenile  Court  Law,  Stats.  1909,  p. 
213)  is  an  exercise  of  the  police  powers  of  the  state,  through 
the  judicial  department;  this  is  not  a  matter  coming  within 
"municipal  affairs"  within  the  meaning  of  that  term  in  the 
constitution.     (Nicholl  v.  Koster,  157  Cal.  416,  108  Pac.  302.)_ 

The  provision  of  the  section  denying  the  power  of  the  legis- 
lature to  abrogate  or  annul  the  special  charters  of  municipal 
corporations  antedating  its  adoption,  applies  only  to  organized 
municipalities,  and  has  no  application  to  a  municipality  which 
has  never  been  actually  organized.  (People  v.  Wilmington,  151 
Cal.  649,  91  Pac.  524.) 

The  act  for  the  consolidation  of  municipalities  (Stats.  1909, 
p.  282)  is  not  in  conflict  with  the  constitution.  It  is  in  no 
sense  a  special  law,  but  its  provisions  are  applicable  in  every 


Art.  XI,  §  7         CONSTITUTION  OF  1879.  320 

case  of  contiguous  municipalities  desiring  to  consolidate  into 
one  municipality,  and  have  a  uniform  operation  in  all  cases. 
(Williams  V.  Board  of  Trustees,  157  Cal.  711,  109  Pac.  482.) 

The  annexation  of  territory  to  a  city  is  not  a  municipal  affair, 
but  is  a  matter  pertaining  to  the  state  at  large  and  within 
its  general  powers  and  functions,  and  the  general  law  upon 
that  subject  controls.  (People  v.  City  of  Long  Beach,  155  Cal. 
604,  102  "Pac.  664.) 

Under  its  authority  to  provide  by  general  laws  for  the  in- 
corporation of  cities,  the  legislature  can  provide  for  the  annex- 
ation of  territory  to  existing  municipalities.  (People  v.  City 
of  Los  Angeles,  154  Cal.  220,  97  Pac.  311.) 

The  power  of  the  legislature  to  provide  for  police  and  inferior 
courts  in  cities  and  towns  is  not  abridged  by  this  section,  where 
a  city  having  a  freeholders'  charter  has  not  taken  advantage 
of  the  permission  granted  by  section  8 14  of  article  11  to  in- 
clude in  its  charter  provision  for  the  establishment  of  a  police 
court.     (Fleming  v.  Hance,  153   Cal.   162,  94  Pac.  620.) 

The  fixing  of  the  boundaries  of  the  territory  to  be  annexed 
to  a  city  or  town  is  not  a  municipal  affair.  (People  v.  Ontario, 
148  Cal.  625,  84  Pac.  205.) 

The  trial  and  punishment  of  offenses  defined  by  the  laws  of 
the  state  is  not  a  municipal  affair.  (Eobert  v.  Police  Court, 
148  Cal.  131,  82  Pac.  838.     Per  Beatty,  C.  J.,  and  Henshaw,  J.) 

A  provision  of  a  charter  providing  for  the  removal  of  mu- 
nicipal officers  does  not  supersede  the  provisions  of  the  Penal 
Code  conferring  jurisdiction  of  such  removal  upon  the  superior 
court.     (Coflfcy  v.  Superior  Court,   147  Cal.  525,  82  Pac.  75.) 

To  be  "siibject  to"  is  "to  become  subservient  to"  or  "sub- 
ordinate to,"  and  to  control  is  defined  as  "to  exercise  a  divert- 
ing, restraining  or  governing  influence  or  to  direct,  to  counter- 
act, to  regulate."  (Coffey  v.  Superior  Court,  147  Cal.  535,  82 
Pac.  75.) 

City  and  county  governments  may  be  consolidated. 

Sec.  7.  City  and  county  governments  may  be  merged 
and  consolidated  into  one  municipal  government,  with 
one    set    of    officers,    and    may    be    incorporated    un- 


321  CONSTITUTION  OP  1879.         Art.  XI,  §  7 

der  general  laws  providing  for  the  incorporation  and 
organization  of  corporations  for  municipal  purposes. 
The  provisions  of  this  constitution  applicable  to  cities, 
and  also  those  applicable  to  counties,  so  far  as  not  in- 
consistent or  prohibited  to  cities,  shall  be  applicable  to 
such  consolidated  government.  (Amendment  adopted 
November  6,  1894.) 

[ORIGINAL  SECTION.] 
Sec.  7.  City  and  county  governments  may  be  merged  and 
consolidated  into  one  municipal  government,  with  one  set  of 
officers,  and  may  be  incorporated  under  general  laws  providing 
for  the  incorporation  and  organization  of  corporations  for  mu- 
nicipal purposes.  The  provisions  of  this  constitution  appli- 
cable to  cities,  and  also  those  applicable  to  counties,  so  far 
as  not  inconsistent  or  not  prohibited  to  cities,  shall  be  ap- 
plicable to  such  consolidated  government.  In  consolidated  city 
and  county  governments,  of  more  than  one  hundred  thousand 
population,  there  shall  be  two  boards  of  supervisors  or  houses 
of  legislation — one  of  which,  to  consist  of  twelve  persons,  shall 
be  elected  by  general  ticket  from  the  city  and  county  at  large, 
and  shall  hold  office  for  the  term  of  four  years,  but  shall  be 
so  classified  that  after  the  first  election  only  six  shall  be 
elected  every  two  years;  the  other,  to  consist  of  twelve  per- 
sons, shall  be  elected  every  two  years,  and  shall  hold  office  for 
the  term  of  two  years.  Any  vacancy  occurring  in  the  office  of 
supervisor,  in  either  board,  shall  be  filled  by  the  mayor  or 
other  chief  executive  officer. 

CONSOLIDATED   GOVERNMENTS.— There   is    no    constitu- 
tional inhibition  against  iucorporating  a  portion  of  the  inhab- 
Constitution — 21 


A.rt.  XI,  §  7         CONSTITUTION  OP  1879.  822 

itants  of  a  county  as  a  city,*  or  creating  a  county  out  of  the 
territory  of  a  city.      (People  v.  Hill,  7  Cal.  97.) 

The  act  consolidating  the  city  and  county  of  San  Francisco, 
commonly  known  as  the  Consolidation  Act,  is  constitutional 
(People  V.  Hill,  7  Cal.  97.) 

The  act  to  incorporate  the  city  and  county  of  Sacramento 
did  not  repeal  the  law  by  which  the  county  of  Sacramento  was 
created.  The  city  and  county  constitute  a  corporation  for  some 
purposes,  while  they  are  distinct  as  to  others.  (People  v.  Mul- 
lins,   10  Cal.   20.) 

The  city  and  county  of  San  Francisco  is  the  successor  of  the 
city  of  San  Francisco,  which  was  not  destroyed  by  the  con- 
solidation, but  continued.      (Frank  v.  Supervisors,  21  Cal.  668.) 

The  body  politic  known  as  the  city  and  county  of  San  Fran- 
cisco is  a  municipal  corporation,  and  in  matters  of  government 
is  to  be  regarded  as  a  city.  But  the  territory  over  which  that 
government  is  exercised,  considered  in  its  political  and  judicial 
relations  to  other  portions  of  the  state,  is  a  county.  (Kahn  v. 
Sutro,  114  Cal.  316,  46  Pac.  87,  33  L.  E.  A.  620;  Crowley  v. 
Freud,  132  Cal.  440,  64  Pac.  696.  But  see  Martin  v.  Election 
Commrs.,  126  Cal.  404,  58  Pac.  932.) 

The  word  "city,"  when  used  in  the  constitution,  includes  a 
consolidated  city  and  county.  (People  v.  Hoge,  55  Cal.  612; 
Morgan  v.  Menzies,  60  Cal.  341.) 

The  provisions  of  this  section  are  prospective  and  apply  only 
to  governments  merged  after  the  constitution  went  into  effect. 
(Wood  v.  Election  Commrs.,  58  Cal.  561.) 

The  provision  of  this  section  for  two  boards  of  supervisors 
applied  only  to  general  laws  or  charters  passed  subsequently 
to  the  adoption  of  the  constitution.  (Desmond  v.  Dunn,  55  Cal. 
242.) 

Under  the  provision  of  this  section  that  the  provisions  of 
the  constitution  as  to  cities  shall  apply  to  consolidated  cities 
and  counties,  the  provisions  of  section  6  of  this  article  apply 
to  consolidated  cities  and  counties.  (Desmond  v.  Dunn,  55  Cal. 
242.) 

The  provisions  of  section  11,  article  11,  are  applicable  to 
consolidated  city  and  county  governments.  (Ex  parte  Keeney, 
S4  Cal.  304,  24  Pac.  34.) 


Art.  XI,  Sec.  71/2-    Insert  at  Page  323. 

See.  714.     Any  county  may  frame  a  charter  for  its 
own   government   consistent  with  and   subject  to  the 
constitution   (or,  having-  framed  such  a  charter,  may 
fiame  a  new  one),  and  relating  to  matters  authorized 
by  provisions  of  the  constitution,  by  causing  a  board 
of  fifteen  freeholders,  who  have  been  for  at  least  five 
years  qualified  electors  thereof,  to  be  elected  by  the 
qualified  electors  of  said  county,  at  a  general  or  special 
election.     Said  board  of  freeholders  may  be  so  elected 
in  pursuance  of  an  ordinance  adopted  by  the  vote  of 
three  fifths  of  all  the  members  of  the  board  of  super- 
visors of  such  county,  declaring  that  the  public  inter- 
est requires  the  election  of  such  board  for  the  purpose 
of  preparing  and  proposing  a  charter  for  said  county, 
or  in  pursuance  of  a  petition  of  qualified  electors  of 
said   county   as  hereinafter  provided.     Such   petition, 
signed  by  fifteen  per  centum  of  the  qualified  electors 
of  said  county,   computed  upon   the  total  number   of 
votes  cast  therein  for  all  candidates  for  governor  at 
the  last  preceding  general  election  at  which  a  governor 
v»-as  elected,  praying  for  the  election  of  a  board  of  fif- 
teen freeholders  to  prepare  and  propose  a  charter  for 
said  county,  may  be  filed  in  the  office  of  the  county 
clerk.     It    shall   be    the    duty    of    said    county    clerk, 
Avithin  twenty  days  after  the  filing  of  said  petition,  to 
examine  the  same,  and  to  ascertain  from  the  record  of 
the  registration  of  electors  of  the  county,  whether  said 
petition  is  signed  by  the  requisite  number  of  qualified 
electors.     If    required    by    said    clerk,    the    board    of 
supervisors    shall    authorize    him    to    employ    persons 
specially  to  assist  him  in  the  woi'k  of  examining  such 


petition,  and  shall  provide  for  their  compensation. 
Upon  the  completion  of  such  examination,  said  clerk 
shall  forthwith  attach  to  said  petition  his  certificate, 
properly  dated,  showing  the  result  thereof,  and  if,  by 
said  certificate,  it  shall  appear  that  said  petition  is 
signed  by  the  requisite  number  of  qualified  electors, 
said  clerk  shall  immediately  present  said  petition  to 
the  board  of  supervisors,  if  it  be  in  session,  otherwise 
at  its  next  regular  meeting  after  the  date  of  such  cer- 
tificate. Upon  the  adoption  of  such  ordinance,  or  the 
presentation  of  such  petition,  said  board  of  supervisors 
shall  order  the  holding  of  a  special  election  for  the 
purpose  of  electing  such  l)oard  of  freeholders,  which 
said  special  election  shall  be  held  not  less  than  twenty 
days  nor  more  than  sixty  days  after  the  adoption  of 
the  ordinance  aforesaid  or  the  presentation  of  said 
petition  to  said  board  of  supervisors ;  provided,  that 
if  a  general  election  shall  occur  in  said  county  not  less 
than  twenty  days  nor  more  than  sixty  days  after  the 
adoption  of  the  ordinance  aforesaid,  or  such  presenta- 
tion of  said  petition  to  said  board  of  supervisors,  said 
board  of  freeholders  may  be  elected  at  such  general 
election.  Candidates  for  election  as  members  of  said 
board  of  freeholders  shall  be  nominated  by  petition, 
substantially  in  the  same  manner  as  may  be  provided 
by  general  law  for  the  nomination,  by  petition  of 
electors,  of  candidates  for  county  offices,  to  be  voted 
for  at  general  elections.  It  shall  be  the  duty  of  said 
board  of  freeholders,  within  one  hundred  and  twenty 
days  after  the  result  of  such  election  shall  have  been 
declared  by  said  board  of  supervisors,  to  prepare  and 


propose  a  charter  for  said  county,  which  shall  be 
signed  in  duplicate  by  the  members  of  said  board  of 
freeholders,  or  a  majority  of  them,  and  be  filed,  one 
copy  in  the  office  of  the  county  clerk  of  said  county 
and  the  other  in  the  office  of  the  county  recorder 
thereof.  Said  board  of  supervisors  shall  thereupon 
cause  said  proposed  charter  to  be  published  for  at 
least  ten  times  in  a  daily  newspaper  of  general  cir- 
culation, printed,  published  and  circulated  in  said 
county ;  provided,  that  in  any  county  where  no  such 
daily  newspaper  is  printed,  published  and  circulated, 
such  proposed  charter  shall  be  publislied  for  at  least 
three  times  in  at  least  one  weekly  newspaper,  of  gen- 
eral circulation,  printed,  published  and  circulated  in 
such  county;  and  provided,  that  in  any  county  where 
neither  such  daily  nor  such  weekly  newspaper  is 
printed,  puhlished  and  circulated,  a  copy  of  such  pro- 
posed charter  shall  be  posted  l)y  the  county  clerk  in 
"three  public  places  in  said  county,  and  on  or  near  the 
entrance  to  at  least  one  pui^lic  scboolhouse  in  each 
school  district  in  said  county,  and  the  fii'st  publication 
or  the  posting  of  such  proposed  charter  shall  be  made 
within  fifteen  days  after  the  tiling  of  a  copy  thereof, 
as  aforesaid,  in  the  office  of  the  county  clerk.  Said 
proposed  charter  shall  be  submitted  by  said  board  of 
supervisors  to  tlie  qualified  electors  of  said  county  at 
a  special  election  held  not  less  than  thirty  days  nor 
more  than  sixty  days  after  the  completion  of  such 
publication,  or  after  such  posting;  provided,  that  if 
a  general  election  shall  occur  in  said  county  not  less 
than  thirty  days  nor  more  than  sixty  days  after  the 
completion  of  such  ])iiblication,  oi-  after  such  posting, 
then   such   pi-oposcd   charter   may   be   so   submitted   at 


such  general  election.  If  a  majority  of  said  qualified 
electors,  voting  thereon  at  such  general  or  special  elec- 
tion, shall  vote  in  favor  of  such  proposed  charter,  it 
shall  he  deemed  to  be  ratified,  and  shall  be  forthwith 
submitted  to  the  legislature,  if  it  be  in  regular  session, 
otherwise  at  its  next  regular  session,  or  it  may  be  sub- 
mitted to  the  legislature  in  extraordinary  session,  for 
its  approval  or  rejection  as  a  whole,  without  power 
of  alteration  or  amendment.  Such  approval  may  be 
made  by  concurrent  resolution,  and  if  approved  by  a 
majority  vote  of  the  members  elected  to  each  house, 
such  charter  shall  become  the  charter  of  such  county 
and  shall  become  the  organic  law  thereof  relative  to 
the  matters  therein  provided,  and  supersede  any  exist- 
ing charter  framed  under  the  provisions  of  this  sec- 
tion, and  all  amendments  thereof,  and  shall  supersede 
all  laws  inconsistent  with  such  charter  relative  to  the 
matters  provided  in  such  charter.  A  copy  of  such 
charter,  certified  and  authenticated  by  the  chairman" 
and  clerk  of  the  board  of  supervisors  under  the  seal 
of  said  ])oard  and  attested  by  the  county  clerk  of  said 
county,  setting  forth  the  submission  of  such  charter  to 
the  electors  of  said  county,  and  its  ratification  by 
them,  shall,  after  the  approval  of  such  charter  by  the 
legislature,  be  made  in  duplicate,  and  filed,  one  in  the 
office  of  the  secretary  of  state  and  the  other,  after 
])eing  recorded  in  the  office  of  the  recorder  of  said 
county,  shall  be  filed  in  the  office  of  the  county  clerk 
thereof,  and  thereafter  all  courts  shall  take  judicial 
notice  of  said  charter. 

The  charter,  so  ratified,  may  be  amended  by  pro- 
posals therefor  submitted  by  the  board  of  supervisors 
of  the  county  to  the  (pialified  electors  thereof  at  a  gen- 


eral  or  special  election  held  not  less  than  thirty  days 
nor  more  than  sixty  days  after  the  publication  of  such 
proposals  for  ten  times  in  a  daily  newspaper  of  gen- 
eral circulation,  printed,  published  and  circulated  in 
said  county;  provided,  that  in  any  county  where  no 
such   daily  newspaper  is  printed,  published  and   cir- 
culated, such  proposed  charter  shall  be  published  for 
at  least  three  times  in  at  least  one  weekly  newspaper, 
of  general   circulation,   printed,  published  and   circu- 
lated in  such   county;   provided,   that  in  any   county 
where  neither  such  daily  nor  such  weekly  newspaper 
is  printed,  published  and  circulated,  a  copy  of  such 
proposed  charter  shall  be  posted  by  the  county  clerk 
in  three  public  places  in  said  county,  and  on  or  near 
the  entrance  to  at  least  one  public  schoolhouse  in  each 
school  district  in  said  county.     If  a  majority  of  such 
qualified  electors  voting  thereon,   at  such   general  or 
special  election,  shall  vote  in  favor  of  any  such  pro- 
posed amendment  or  amendments,  or  any  amendment 
or   amendments   proposed   by   petition   as   hereinafter 
provided,   such   amendment   or   amendments   shall   be 
deemed   to   be   ratified,    and  shall   be   forthwith   sub- 
mitted to  the  legislature,  if  it  be  in  regular  session, 
otherwise  at  its  next  regular  session,  or  may  be  sub- 
mitted to  the  legislature  in  extraordinary  session,  for 
approval  or  rejection  as  a  whole,  without  power  of 
alteration  or  amendment,  and  if  approved  by  tlie  legis- 
lature,   as   herein   provided   for   the    approval    of   the 
charter,   such   charter  shall   be   amended   accordingly. 
A  copy  of  sncli  amendment  or  amendments  sliall,  after 
the  approval  thereof  b}'  the  legislature,  be  made  in 
duplicate,    and    shall    be    authenticated,    certified,    re- 
corded and  filed  as  herein  provided  for  the  charter, 


and  with  like  force  and  effect.  Whenever  a  petition 
signed  by  ten  per  centum  of  the  qualified  electors  of 
any  county,  computed  upon  the  total  number  of  votes 
cast  in  said  county  for  all  candidates  for  governor  at 
the  last  general  election,  at  which  a  governor  was 
elected,  is  filed  in  the  office  of  the  county  clerk  of  said 
county,  petitioning  the  board  of  supervisors  thereof 
to  submit  any  proposed  amendment  or  amendments  to 
the  charter  of  such  county,  which  amendment  or 
amendments  shall  be  set  forth  in  full  in  such  petition, 
to  the  qualified  electors  thereof,  such  petition  shall 
forthwith  be  examined  and  certified  by  the  county 
clerk,  and  if  signed  by  the  requisite  number  of  quali- 
fied electors  of  such  county,  shall  be  presented  to  the 
said  board  of  supervisors,  by  the  said  county  clerk,  as 
hereinbefore  provided  for  petitions  for  the  election  of 
boards  of  freeholders.  Upon  the  presentation  of  said 
petition  to  said  board  of  supervisors,  said  board  must 
submit  the  amendment  or  amendments  set  forth 
therein  to  the  qualified  electors  of  said  county  at  a 
general  or  special  election  held  not  less  than  thirty 
days  nor  more  than  sixty  days  after  the  publication  or 
posting  of  such  proposed  amendment  or  amendments 
in  the  same  manner  as  hereinbefore  provided  in  the 
case  of  the  submission  of  any  proposed  amendment  or 
amendments  to  such  charter,  proposed  and  submitted 
by  the  board  of  supervisors.  In  submitting  any  such 
charter,  or  amendments  thereto,  any  alternative  article 
or  proposition  may  be  presented  for  the  choice  of  the 
electors,  and  may  be  voted  on  separately  without 
prejudice  to   others. 

Every  special  election  held  under  the  provisions  of 
this  section,  for  the  election  of  lioards  of  freeholders 


or  for  the  submission  of  proposed  charters,  or  any 
amendment  or  amendments  thereto,  shall  be  called  by 
the  board  of  supervisors,  by  ordinance,  which  shall 
specify  the  purpose  and  time  of  such  election  and  shall 
establish  the  election  precincts  and  designate  the  poll- 
ing places  therein,  and  the  names  of  the  election 
officers  for  each  such  precinct.  Such  ordinance,  prior 
to  such  election,  shall  be  published  five  times  in  a 
daily  newspaper,  or  twice  in  a  weekly  newspaper,  if 
there  be  no  such  daily  newspaper,  printed,  published 
and  circulated  in  said  county;  provided,  that  if  no 
such  .daily  or  Aveekly  newspaper  be  printed  or  pub- 
lished in  such  county,  then  a  copy  of  such  ordinance 
shall  be  posted  by  the  county  clerk  in  three  public 
places  in  such  county  and  in  or  near  the  entrance  to 
at  least  one  public  sehoolhouse  in  each  school  district 
therein.  In  all  other  respects,  every  such  election 
shall  be  held  and  conducted,  the  returns  thereof  can- 
vassed and  the  result  thereof  declared  by  the  board 
of  supervisors  in  the  same  manner  as  provided  by  law 
for  general  elections.  Whenever  boards  of  freeholders 
shall  be  elected,  or  any  such  proposed  charter,  or 
amendment  or  amendments  thereto,  submitted,  at  a 
general  election,  the  general  laws  applicable  to  the 
election  of  county  officers  and  the  submission  of 
propositions  to  the  vote  of  electors,  shall  be  followed 
in  so  far  as  the  same  may  be  applicable  thereto. 

It  shall  be  competent,  in  all  charters,  framed  under 
the  authority  given  by  this  section  to  provide,  in  addi- 
tion to  any  other  provisions  allowable  by  this  Consti- 
tution, and  the  same  shall  provide,  for  the  following 
matters : 


1.  For  boards  of  supervisors  and  for  the  constitu- 
tion, regulation  and  government  thereof,  for  the  times 
at  which  and  the  terms  for  which  the  members  of  said 
board  shall  be  elected,  for  the  number  of  members, 
not  less  than  three,  that  shall  constitute  such  boards, 
for  their  compensation  and  for  their  election,  either  by 
the  electors  of  the  counties  at  large  or  by  districts; 
provided,  that  in  any  event  said  board  shall  consist  of 
one  member  for  each  district,  who  must  be  a  qualified 
elector  thereof;  and 

2.  For  sheriffs,  county  clerks,  treasurers,  recorders, 
license  collectors,  tax  collectors,  public  administrators, 
coroners,  surveyors,  district  attorneys,  auditors,  asses- 
sors and  superintendents  of  schools,  for  the  election  or 
appointment  of  said  officers,  or  any  of  them,  for  the 
times  at  which  and  the  terms  for  which,  said  officers 
shall  be  elected  or  appointed,  and  for  their  compensa- 
tion, or  for  the  fixing  of  such  compensation  by  boards 
of  supervisors,  and,  if  appointed,  for  the  manner  of 
their  appointment;  and 

3.  For  the  number  of  justices  of  the  peace  and  con- 
stables for  each  township,  or  for  the  number  of  such 
judges  and  other  officers  of  such  inferior  courts  as 
may  be  provided  by  the  constitution  or  general  law, 
for  the  election  or  appointment  of  said  officers,  for  the 
times  at  which  and  the  terms  for  which  said  officers 
shall  be  elected  or  appointed,  and  for  their  compensa- 
tion, or  for  the  fixing  of  such  compensation  by  boards 
of  supervisors,  and  if  appointed,  for  the  manner  of 
their  appointment ;  and 

4.  For  the  powers  and  duties  of  boards  of  super- 
visors and  all  other  county  officers,  for  their  removal 
and  for  the  consolidation  and  segregation  of  county 


offices,  and  for  the  manner  of  filling  all  vacancies  occur- 
ring therein ;  provided,  that  the  provisions  of  such 
charters  relating  to  the  powers  and  duties  of  boards  of 
supervisors  and  all  other  county  officers  shall  be  sub- 
ject to  and  controlled  by  general  laws;  and 

4^.  For  the  assumption  and  discharge  bj^  county 
officers  of  certain  of  the  municipal  functions  of  the 
cities  and  towns  within  the  county,  whenever,  in  the 
case  of  cities  and  towns  incorporated  under  general 
laws,  the  discharge  by  county  officers  of  such  muni- 
cipal functions  is  authorized  by  general  law,  or  when- 
ever, in  the  case  of  cities  and  towns  organized  under 
section  eight  of  this  article,  the  discharge  by  county 
officers  of  such  municipal  functions  is  authorized  by 
provisions  of  the  charters,  or  by  amendments  thereto, 
of  such  cities  or  towns. 

5.  For  the  fixing  and  regulation  by  boards  of  super- 
visors, by  ordinance,  of  the  appointment  and  number 
of  assistants,  deputies,  clerks,  attaches  and  other  per- 
sons to  be  employed,  from  time  to  time,  in  the  several 
offices  of  the  comity,  and  for  the  prescribing  and  regu- 
lating by  such  boards  of  the  powers,  duties,  cpialifica- 
tions  and  compensation  of  such  persons,  the  times  at 
which,  and  terms  for  which  they  shall  be  appointed, 
and  the  manner  of  their  appointment  and  removal; 
and 

6.  For  the  compensation  of  such  fish  and  game 
wardens,  probation  and  other  officers  as  may  be  pro- 
vided by  general  law,  or  for  the  fixing  of  such  com- 
pensation by  boards  of  supervisors. 

All  elective  officers  of  counties,  and  of  townships, 
of  road  districts  and  of  highway  construction  divisions 
therein  shall  be  nominated  and  elected  in  the  manner 


provided  by  general  laws  for  the  nomination  and  elec- 
tion of  such  officers. 

All  charters  framed  under  the  authority  given  by 
this  section,  in  addition  to  the  matters  herein  above 
specified,  may  provide  as  follows: 

For  officers  other  than  those  required  by  the  Con- 
stitution and  laws  of  the  state,  or  for  the  creation  of 
an}^  or  all  of  such  offices  by  boards  of  supervisors,  for 
the  election  or  appointment  of  persons  to  fill  such 
offices,  for  the  manner  of  such  appointment,  for  the 
times  at  Avhich  and  the  terms  for  which  such  persons 
shall  be  so  elected  or  appointed,  and  for  their  com- 
pensation, or  for  the  fixing  of  such  compensation  by 
boards  of  supervisors. 

For  offices  hereafter  created  by  this  Constitution 
or  by  general  law,  for  the  election  or  appointment  of 
persons  to  fill  such  offices,  for  the  manner  of  such  ap- 
pointment, for  the  times  at  which  and  the  terms  for 
which  such  persons  shall  be  so  elected  or  appointed, 
and  for  their  compensation,  or  for  the  fixing  of  such 
compensation  by  boards  of  supervisors. 

For  the  formation,  in  such  counties,  of  road  districts 
for  the  care,  maintenance,  repair,  inspection  and  super- 
vision only  of  roads,  highways  and  bridges;  and  for 
the  formation,  in  such  counties,  of  highway  construc- 
tion divisions  for  the  construction  only  of  roads,  high- 
ways and  bridges;  for  the  inclusion  in  any  such  dis- 
trict or  division,  of  the  whole  or  any  part  of  any 
incorporated  city  or  town,  upon  ordinance  passed  by 
such  incorporated  city  or  town  authorizing  the  same, 
and  upon  the  assent  to  such  inclusion  by  a  majority 
of  the  qualified  electors  of  such  incorporated  city  or 
town,  or  portion  thereof,  proposed  to  be  so  included, 


at  au  election  held  for  that  purpose ;  for  the  organiza- 
tion, government,  powers  and  jurisdiction  of  such  dis- 
tricts and  divisions,  and  for  raising  revenue  therein, 
for  such  purposes,  by  taxation,  upon  the  assent  of  a 
majority  of  the  qualified  electors  of  such  districts  or 
divisions,  voting  at  an  election  to  be  held  for  that 
purpose ;  for  the  incurring  of  indebtedness  therefor 
by  such  counties,  districts  or  divisions  for  such  pur- 
poses respectively,  by  the  issuance  and  sale,  by  the 
counties,  of  bonds  of  such  counties,  districts  or  di- 
visions, and  the  expenditure  of  the  proceeds  of  the 
sale  of  such  bonds,  and  for  levying  and  collecting 
taxes  against  the  property  of  the  counties,  districts  or 
divisions,  as  the  case  may  be,  for  the  payment  of  the 
principal  and  interest  of  such  indebtedness  at  ma- 
turity ;  provided,  that  any  such  indebtedness  shall  not 
be  incurred  without  the  assent  of  two  thirds  of  the 
qualified  electors  of  the  county,  district  or  division, 
as  the  case  may  be,  voting  at  an  election  to  be  held 
for  that  purpose,  nor  unless  before  or  at  the  time  of 
incurring  such  indebtedness  provision  shall  be  made 
for  the  collection  of  an  annual  tax  sufficient  to  pay 
the  interest  on  such  indebtedness  as  it  falls  due,  and 
also  for  a  sinking  fund  for  the  payment  of  the  princi- 
pal thereof  on  or  before  maturity,  which  shall  not  ex- 
ceed forty  years  from  the  time  of  contracting  the 
same,  and  the  procedure  for  voting,  issuing  and  selling 
such  bonds  shall,  except  in  so  far  as  the  same  shall  be 
prescribed  in  such  charters,  conform  to  general  laws 
for  the  authorizing  and  incurring  by  counties  of 
bonded  indebtedness,  so  far  as  applicable ;  provided, 
further,  that  provisions  in  such  charters  for  the  con- 
struction,   care,    maintenance,    repair,    inspection    and 


supervision  of  roads,  hiiihways  and  bridges  for  which 
aid  from  the  state  is  granted,  shall  be  subject  to  such 
regulations  and  conditions  as  may  be  imposed  by  the 
legislature. 

Whenever  any  county  has  framed  and  adopted  a 
charter,  and  the  same  shall  have  been  approved  by  the 
legislature,  as  herein  provided,  the  general  laM^s 
adopted  by  the  legislature  in  pursuance  of  sections 
four  and  five  of  this  article,  shall,  as  to  such  county; 
be  supersededed  by  said  charter  as  to  matters  foi 
which,  under  this  section  it  is  competent  to  make 
provision  in  such  charter,  and  for  which  provision  is 
made  therein,  except  as  herein  otherwise  expressly 
provided ;  and  except  that  any  such  charter  shall  nol 
affect  the  tenure  of  office  of  the  elective  officers  of  the 
county,  or  of  any  district.  toAvnship  or  division  thereof 
in  office  at  the  time  such  charter  goes  into  effect,  anc 
such  officers  shall  continue  to  hold  their  respective 
offices  until  the  expiration  of  the  term  for  which  thej 
shall  have  been  elected,  unless  sooner  removed  in  the 
manner  provided  by  law. 

Tlie  charter  of  any  county,  adopted  under  the  au 
thority  of  this  section,  may  be  surrendered  and  an 
nulled  with  the  assent  of  two  thirds  of  the  qualifiec 
electors  of  such  county,  voting  at  a  special  election 
held  for  that  purpose,  and  to  be  ordered  and  callec 
by  the  board  of  supervisors  of  the  county  upon  re 
eeiving  a  written  petition,  signed  anel  certified  as 
hereinabove  provided  for  the  purposes  of  the  adop 
tion  of  charters,  requesting  said  board  to  submit  tin 
question  of  the  surrender  anel  annulment  of  sucli 
charter  to  the  eiualified  electors  of  such  county,  and,  ir 
the  event  of  the  surrender  and  annulment  of  any  sucl 


charter,  such  county  shall  thereafter  be  governed 
under  general  laws  in  force  for  the  government  of 
counties. 

The  provisions  of  this  section  shall  not  be  appli- 
cable to  any  county  that  is  consolidated  with  any  city. 
(Amendment  adopted  November  3,  1914.) 


323  CONSTITUTION  OF  1879.     Art.  XI,  §  71/0 

Section  5,  article  11,  requiring  the  legislature  to  provide  for 
the  strict  accountalaility  of  county  officers  for  all  fees  "which 
may  be  collected  by  them,  is  applicable  to  consolidated  cities 
and  counties.     (Bauer  v.  Williams,  118  Cal.  401,  50  Pac.  691.) 

Freeholders'  charters  for  counties. 

Sec.  7I/2.  Any  county  may  frame  a  charter  for  its 
own  government  consistent  with  and  subject  to  the  con- 
stitution (or,  having  framed  such  a  charter,  may  frame 
a  new  one,)  relating  to  the  matters  hereinafter  in  this 
section  specified,  and  none  other,  by  causing  a  board 
of  fifteen  freeholders,  who  have  been  for  at  least  five 
years  qualified  electors  thereof,  to  be  elected  by  the 
qualified  electors  of  said  county,  at  a  general  or  special 
election.  Said  board  of  freeholders  may  be  so  elected 
in  pursuance  of  an  ordinance  adopted  by  the  vote  of 
three-fifths  of  all  the  members  of  the  board  of  super- 
visors of  such  county,  declaring  that  the  public  interest 
requires  the  election  of  such  board  for  the  purpose  of 
preparing  and  proposing  a  charter  for  said  county,  or 
in  pursuance  of  a  petition  of  qualified  electors  of  said 
county  as  hereinafter  provided.  Such  petition,  signed 
by  fifteen  per  centum  of  the  qualified  electors  of  said 
county,  computed  upon  the  total  number  of  votes  cast 
therein  for  all  candidates  for  governor  at  the  last  pre- 
ceding general  election  at  which  a  governor  was  elected, 
praying  for  the  election  of  a  board  of  fifteen  freeholders 
to  prepare  and  propose  a  charter  for  said  county,  may 
be  filed  in  the  office  of  the  county  clerk.     It  shall  be 


Art.  XI,  §  71^       CONSTITUTION  OF   1879.  324 

the  duty  of  said  county  clerk,  within  twenty  days  af- 
ter the  filing  of  said  petition,  to  examine  the  same,  and 
to  ascertain  from  the  record  of  the  registration  of 
electors  of  the  county,  whether  said  petition  is  signed 
by  the  requisite  number  of  qualified  electors.  If  re- 
quired by  said  clerk,  the  board  of  supervisors  shall  au- 
thorize him  to  employ  persons  specially  to  assist  him 
in  the  work  of  examining  such  petition,  and  shall  pro- 
vide for  their  compensation.  Upon  the  completion  of 
such  examination,  said  clerk  shall  forthwith  attach  to 
said  petition  his  certificate,  properly  dated,  showing  the 
result  thereof,  and  if,  by  said  certificate,  it  shall  appear 
that  said  petition  is  signed  by  the  requisite  number  of 
qualified  electors,  said  clerk  shall  immediately  present 
said  petition  to  the  board  of  supervisors,  if  it  be  in 
session,  otherwise  at  its  next  regular  meeting  after  the 
date  of  such  certificate.  Upon  the  adoption  of  such 
ordinance,  or  the  presentation  of  such  petition,  said 
board  of  supervisors  shall  order  the  holding  of  a  special 
election  for  the  purpose  of  electing  such  board  of  free- 
holders, which  said  special  election  shall  be  held  not 
less  than  twenty  days  nor  more  than  sixty  days  after 
the  adoption  of  the  ordinance  aforesaid  or  the  presenta- 
tion of  said  petition  to  said  board  of  supervisors;  pro- 
vided, that  if  a  general  election  shall  occur  in  said 
county  not  less  than  twenty  days  nor  more  than  sixty 
days  after  the  adoption  of  the  ordinance  aforesaid,  or 
such  presentation  of  said  petition  to  said  board  of  su- 


325  CONSTITUTION  OF  1879.     Art.  XI,  §  7I/2 

pervisors,  said  board  of  freeholders  may  be  elected  at 
such  general  election.  Candidates  for  election  as  mem- 
bers of  said  board  of  freeholders  shall  be  nominated  by 
petition,  substantially  in  the  same  manner  as  may  be 
provided  by  general  law  for  the  nomination,  by  peti- 
tion of  electors,  of  candidates  for  county  offices,  to  be 
voted  for  at  general  elections. 

It  shall  be  the  duty  of  said  board  of  freeholders, 
within  one  hundred  and  twenty  days  after  the  result 
of  such  election  shall  have  been  declared  by  said  board 
of  supervisors,  to  prepare  and  propose  a  charter  for 
said  county,  which  shall  be  signed  in  duplicate  by  the 
members  of  said  board  of  freeholders,  or  a  majority 
of  them,  and  be  filed,  one  copy  in  the  office  of  the 
county  clerk  of  said  county  and  the  other  in  the  office 
of  the  county  recorder  thereof.  Said  board  of  super- 
visors shall  thereupon  cause  said  proposed  charter  to 
be  published  for  at  least  ten  times  in  a  daily  newspaper 
of  general  circulation,  printed,  published  and  circu- 
lated in  said  county;  provided,  that  in  any  county 
where  no  such  daily  newspaper  is  printed,  published 
and  circulated,  such  proposed  charter  shall  be  pub- 
lished for  at  least  three  times  in  at  least  one  weekly 
newspaper,  of  general  circulation,  printed,  published 
and  circulated  in  such  county ;  and  provided,  that  in 
any  county  where  neither  such  daily  nor  such  weekly 
newspaper  is  printed,  published  and  circulated,  a  copy 
of  such  proposed  charter  slnill  be  posted  by  the  county 


Art.  XI,  §  71/2     CONSTITUTION  OF  1879.  326 

clerk  in  three  public  places  in  said  county,  and  on  or 
near  the  entrance  to  at  lefust  one  public  schoolhouse  in 
each  school  district  in  said  county,  and  the  first  publi- 
cation or  the  posting  of  such  proposed  charter  shall 
be  made  A\ithin  fifteen  days  after  the  filing  of  a  copy 
thereof,  as  aforesaid,  in  the  office  of  the  county  clerk. 
Said  proposed  charter  shall  be  submitted  by  said  board 
of  supervisors  to  the  qualified  electors  of  said  county 
at  a  special  election  held  not  less  than  thirty  days 
nor  more  than  sixty  days  after  the  completion  of  such 
publication,  or  after  such  posting;  provided,  that 
if  a  general  election  shall  occur  in  said  county 
not  less  than  thirty  days  nor  more  than  sixty  days 
after  the  completion  of  such  publication,  or  after 
such  posting,  then  such  proposed  charter  may  be  so 
submitted  at  such  general  election.  If  a  majority  of 
said  qualified  electors,  voting  thereon  at  such  general 
or  special  election,  shall  vote  in  favor  of  such  proposed 
charter,  it  shall  be  deemed  to  be  ratified,  and  shall  be 
forthwith  submitted  to  the  legislature,  if  it  be  in  regular 
session,  otherwise  at  its  next  regular  session,  or  it  may 
be  submitted  to  the  legislature  in  extraordinary  session, 
for  its  approval  or  rejection  as  a  whole,  without  power 
of  alteration  or  amendment.  Such  approval  may  be 
made  by  concurrent  resolution,  and  if  approved  by  a 
majority  vote  of  the  members  elected  to  each  house,  such 
charter  shall  become  the  charter  of  such  county  and 
shall   become   the   organic   law   thereof   relative   to   the 


327  CONSTITUTION  OF  1879.      Art.  XI,  §  71/2 

matters  therein  provided,  and  supersede  any  existing 
charter  framed  under  the  provisions  of  this  section,  and 
all  amendments  thereof,  and  shall  supersede  all  laws 
inconsistent  with  such  charter  relative  to  the  matters 
provided  in  such  charter.  A  copy  of  such  charter,  cer- 
tified and  authenticated  by  the  chairman  and  clerk  of 
the  board  of  supervisors  under  the  seal  of  said  board 
and  attested  by  the  county  clerk  of  said  county,  setting 
forth  the  submission  of  said  charter  to  the  electors  of 
said  county,  and  its  ratification  by  them,  shall,  after  the 
approval  of  such  charter  by  the  legislature,  be  made  in 
duplicate,  and  filed,  one  in  the  office  of  the  secretary  of 
state  and  the  other,  after  being  recorded  in  the  office  of 
the  recorder  of  said  county,  shall  be  filed  in  the  office 
of  the  county  clerk  thereof,  and  thereafter  all  courts 
shall  take  judicial  notice  of  said  charter. 

The  charter,  so  ratified,  may  be  amended  by  proposals 
therefor  submitted  by  the  board  of  supervisors  of  the 
county  to  the  qualified  electors  thereof  at  a  general  or 
special  election  held  not  less  than  thirty  days  nor  more 
than  sixty  days  after  the  publication  of  such  proposals 
for  ten  times  in  a  daily  newspaper  of  general  circulation, 
printed,  published  and  circulated  in  said  county,  pro- 
vided that  in  any  county  where  no  such  daily  news- 
paper is  printed,  published  and  circulated,  such  pro- 
posed charter  shall  be  published  for  at  least  three  times 
in  at  least  one  weekly  newspaper,  of  general  circu- 
lation,   printed,    published,    and    circulated     in    such 


Art.  XI,  §  TY2     CONSTITUTION  OF  1879.  328 

county;  provided,  that  in  any  county  where  neither 
such  daily  nor  such  weekly  newspaper  is  printed,  pub- 
lished and  circulated,  a  copy  of  such  proposed  charter 
shall  be  posted  by  the  county  clerk  in  three  public 
places  in  said  county,  and  on  or  near  the  entrance  to 
at  least  one  public  schoolhouse  in  each  school  district  in 
said  county.  If  a  majority  of  such  qualified  electors 
voting  thereon,  at  such  general  or  special  election,  shall 
vote  in  favor  of  any  such  proposed  amendment  or 
amendments,  or  any  amendment  or  amendments  pro- 
posed by  petition  as  hereinafter  provided,  such  amend- 
ment or  amendments  shall  be  deemed  to  be  ratified,  and 
shall  be  forthwith  submitted  to  the  legislature,  if  it  be 
in  regular  session,  otherwise  at  its  next  regular  session, 
or  may  be  submitted  to  the  legislature  in  extraordinary 
session,  for  approval  or  rejection  as  a  whole,  without 
power  of  alteration  or  amendment,  and  if  approved  by 
the  legislature,  as  herein  provided  for  the  approval  of 
the  charter,  such  charter  shall  be  amended  accordingly. 
A  copy  of  such  amendment  or  amendments  shall,  after 
the  approval  thereof  by  the  legislature,  be  made  in 
duplicate,  and  shall  be  authenticated,  certified,  recorded 
and  filed  as  herein  provided  for  the  charter,  and  with 
like  force  and  effect.  Whenever  a  petition  signed  by  ten 
per  centum  of  the  qualified  electors  of  any  county,  com- 
puted upon  the  total  number  of  votes  cast  in  said  county 
for  all  candidates  for  governor  at  the  last  general  elec- 
tion, at  which  a  governor  was  elected,  is  filed  in  the  office 


329  CONSTITUTION  OF  1879.     Art.  XI,  §  7^^ 

of  the  county  clerk  of  said  county,  petitioning  the  board 
of  supervisors  thereof  to  submit  any  proposed  amend- 
ment or  amendments  to  the  charter  of  such  county,  which 
amendment  or  amendments  shall  be  set  forth  in  full  in 
such  petition,  to  the  qualified  electors  thereof,  such  peti- 
tion shall  forthwith  be  examined  and  certified  by  the 
county  clerk,  and  if  signed  by  the  requisite  number  of 
qualified  electors  of  such  county,  shall  be  presented  to 
the  said  board  of  supervisors,  by  the  said  county  clerk, 
as  hereinbefore  provided  for  petitions  for  the  election 
of  boards  of  freeholders.  Upon  the  presentation  of  said 
petition  to  said  board  of  supervisors,  said  board  'must 
submit  the  amendment  or  amendments  set  forth  therein 
to  the  qualified  electors  of  said  county  at  a  general  or 
special  election  held  not  less  than  thirty  days  nor  more 
than  sixty  days  after  the  publication  or  posting  of  such 
proposed  amendment  or  amendments  in  the  same  man- 
ner as  hereinbefore  provided  in  the  case  of  the  submis- 
sion of  any  proposed  amendment  or  amendments  to  such 
charter,  proposed  and  submitted  by  the  board  of  super- 
nsors.  In  submitting  any  such  charter,  or  amendments 
thereto,  any  alternative  article  or  proposition  may  be 
presented  for  the  choice  of  the  electors,  and  may  be 
voted  on  separately  without  prejudice  to  others. 

Every  special  election  held  under  the  provisions  of 
this  section,  for  the  election  of  boards  of  freeholders  or 
for  the  submission  of  proposed  charters,  or  any  amend- 
ment  or   amendments  thereto,   shall  be   called   by   the 


Art.  XI,  §  71/2     CONSTITUTION  0?  1879.  330 

board  of  supervisors,  by  ordinance,  which  shall  specify 
the  purpose  and  time  of  such  election  and  shall  establish 
the  election  precincts  and  designate  the  polling  places 
therein,  and  the  names  of  the  election  officers  for  each 
such  precinct.  Such  ordinance,  prior  to  such  election, 
shall  be  published  five  times  in  a  daily  newspaper,  or 
twice  in  a  weekly  newspaper,  if  there  be  no  such  daily 
newspaper,  printed,  published  and  circulated  in  said 
county ;  provided  that  if  no  such  daily  or  weekly  news- 
paper be  printed  or  published  in  such  county,  then  a 
copy  of  such  ordinance  shall  be  posted  by  the  county 
clerk  in  three  public  places  in  such  county  and  in  or 
near  the  entrance  to  at  least  one  public  schoolhouse  in 
each  school  district  therein.  In  all  other  respects,  every 
such  election  shall  be  held  and  conducted,  the  returns 
thereof  canvassed  and  the  result  thereof  declared  by  the 
board  of  supervisors  in  the  same  manner  as  provided 
by  law  for  general  elections.  Whenever  boards  of  free- 
holders shall  be  elected,  or  any  such  proposed  charter, 
or  amendment  or  amendments  thereto,  submitted,  at  a 
general  election,  the  general  laws  applicable  to  the  elec- 
tion of  county  officers  and  the  submission  of  proposi- 
tions to  the  vote  of  electors,  shall  be  followed  in  so  far  as 
the  same  may  be  applicable  thereto. 

It  shall  be  competent,  in  all  charters,  framed  under 
the  authority  given  by  this  section  to  provide,  in  addi- 
tion to  any  other  provisions  allowable  by  this  constitu- 


331  CONSTITUTION  OF  1879.     Art.  XI,  §  T^/o 

tion,    and   the    same  shall    provide,    for   the    following 
matters : 

1.  For  boards  of  supervisors  and  for  the  constitution, 
regulation  and  government  thereof,  for  the  times  at 
which  and  the  terms  for  which  the  members  of  said 
board  shall  be  elected,  for  the  number  of  members,  not 
less  than  three,  that  shall  constitute  such  boards,  for 
their  compensation  and  for  their  election,  either  by  the 
electors  of  the  counties  at  large,  or  by  districts;  pro- 
vided, that  in  any  event  said  board  shall  consist  of  one 
member  for  each  district,  who  must  be  a  qualified  elec- 
tor thereof;  and 

2.  For  sheriffs,  county  clerks,  treasurers,  recorders, 
license  collectors,  tax  collectors,  public  administrators, 
coroners,  surveyors,  district  attorneys,  auditors,  asses- 
sors and  superintendents  of  schools,  for  the  election  or 
appointment  of  said  officers,  or  any  of  them,  for  the 
times  at  which,  and  the  terms  for  which,  said  officers, 
shall  be  elected  or  appointed,  and  for  their  compensa- 
tion, or  for  the  fixing  of  such  compensation  by  boards  of 
supervisors,  and,  if  appointed,  for  the  manner  of  their 
appointment;  and 

3.  For  the  number  of  justices  of  the  peace  and  con- 
stables for  each  township,  or  for  the  number  of  such 
judges  and  other  officers  of  such  inferior  courts  as  may 
be  provided  by  the  constitution  or  general  law,  for  the 
election  or  appointment  of  said  officers,  for  the  times  at 
which  and  the  terms  for  which  said  officers  shall  be 


Art.  XI,  §  71/^     CONSTITUTION  OF  1879.  332 

elected  or  appointed,  and  for  their  compensation,  or  for 
the  fixing  of  such  compensation  by  boards  of  supervis- 
ors, and  if  appointed,  for  the  manner  of  their  appoint- 
ment; and 

4.  For  the  powers  and  duties  of  boards  of  supervisors 
and  all  other  county  officers,  for  their  removal  and  for 
the  consolidation  and  segregation  of  county  offices,  and 
for  the  manner  of  tilling  all  vacancies  occurring 
therein;  provided,  that  the  provisions  of  such  charters 
relating  to  the  powers  and  duties  of  boards  of  supervis- 
ors and  all  other  county  officers  shall  be  subject  to  and 
controlled  by  general  laws;  and 

5.  For  the  fixing  and  regulation  by  boards  of  super- 
visors, by  ordinance,  of  the  appointment  and  number  of 
assistants,  deputies,  clerks,  attaches  and  other  persons 
to  be  employed,  from  time  to  time,  in  the  several  offices 
of  the  county,  and  for  the  prescribing  and  regulating  by 
such  boards  of  the  powers,  duties,  qualifications  and 
compensation  of  such  persons,  the  times  at  which,  and 
terms  for  which  they  shall  be  appointed,  and  the  man- 
ner of  their  appointment  and  removal ;  and 

6.  For  the  compensation  of  such  fish  and  game  war- 
dens, probation  and  other  officers  as  may  be  provided  by 
general  law,  or  for  the  fixing  of  such  compensation  by 
boards  of  supervisors. 

All  elective  officers  of  counties,  and  of  townships,  of 
road  districts  and  of  highway  construction  divisions 
therein  shall   be   nominated   and  elected  in  the  manner 


333  CONSTITUTION  OF  1879.     Art.  XI,  §  71/2 

provided  by  general  laws  for  the  noinination  and  elec- 
tion of  such  officers. 

All  charters  framed  under  the  authority  given  by  this 
section,  in  addition  to  the  matters  hereinabove  specified, 
may  provide  as  follows: 

For  officers  other  than  those  required  by  the  constitu- 
tion and  laws  of  the  state,  or  for  the  creation  of  any  or 
all  of  such  offices  by  boards  of  supervisors,  for  the  elec- 
tion or  appointment  of  persons  to  fill  such  offices,  for 
the  manner  of  such  appointment,  for  the  times  at  which 
and  the  terms  for  which  such  persons  shall  be  so  elected 
or  appointed,  and  for  their  compensation,  or  for  the  fix- 
ing of  such  compensation  by  boards  of  supervisors. 

For  offices  hereafter  created  by  this  constitution  or  by 
general  law,  for  the  election  or  appointment  of  persons 
to  fill  such  offices,  for  the  manner  of  such  appointment, 
for  the  times  at  which  and  the  terms  for  which  such  per- 
sons shall  be  so  elected  or  appointed,  and  for  their  com- 
pensation, or  for  the  fixing  of  such  compensation  by 
boards  of  supervisors. 

For  the  formation,  in  such  counties,  of  road  districts 
for  the  care,  maintenance,  repair,  inspection  and  super- 
vision only  of  roads,  highways  and  bridges ;  and  for  the 
formation,  in  such  counties,  of  highway  construction 
divisions  for  the  construction  only  of  roads,  highways 
and  bridges ;  for  the  inclusion  in  any  such  district  or  di- 
vision, of  the  whole  or  any  part  of  any  incorporated  city 
or  town,  upon   ordinance    passed  by  such   incorporated 


Art.  XI,  §  71/2     CONSTITUTION  OF  1879,  334 

city  or  town  authorizing  the  same,  and  upon  the  assent 
to  such  inclusion  by  a  majority  of  the  qualified  electors 
of  such  incorporated  city  or  town,  or  portion  thereof, 
proposed  to  be  so  included,  at  an  election  held  for 
that  purpose;  for  the  organization,  government,  powers 
and  jurisdiction  of  such  districts  and  divisions,  and  for 
raising  revenue  therein,  for  such  purposes,  by  taxation, 
upon  the  assent  of  a  majority  of  the  qualified  electors  of 
such  districts  or  divisions,  voting  at  an  election  to  be 
held  for  that  purpose ;  for  the  incurring  of  indebtedness 
therefor  by  such  counties,  districts  or  divisions  for  such 
purposes  respectively,  by  the  issuance  and  sale,  by  the 
counties,  of  bonds  of  such  counties,  districts  or  divi- 
sions, and  the  expenditure  of  the  proceeds  of  the  sale 
of  such  bonds,  and  for  levjung  and  collecting  taxes 
against  the  property  of  the  counties,  districts  or  divi- 
sions, as  the  case  may  be,  for  the  payment  of  the  prin- 
cipal and  interest  of  such  indebtedness  at  maturity; 
provided,  that  any  such  indebtedness  shall  not  be  in- 
curred without  the  assent  of  two-thirds  of  the  quali- 
fied electors  of  the  county,  district  or  division,  as  the 
case  may  be,  voting  at  an  election  to  be  held  for  that 
purpose,  nor  unless  before  or  at  the  time  of  incurring 
such  indebtedness  provision  shall  be  made  for  the  col- 
lection of  an  annual  tax  sufficient  to  pay  the  interest 
on  such  indebtedness  as  it  falls  due,  and  also  for  a 
sinking  fund  for  the  payment  of  the  principal  thereof 
on  or  before   maturity,   which   shall  not  exceed  forty 


335  CONSTITUTION  OP  1879.     Art.  XI,  §  7% 

years  from  the  time  of  contracting  the  same,  and  the 
procedure  for  voting,  issuing  and  selling  such  bonds 
shall,  except  in  so  far  as  the  same  shall  be  prescribed 
in  such  charters,  conform  to  general  laws  for  the  au- 
thorizing and  incurring  by  counties  of  bonded  indebt- 
edness, so  far  as  applicable;  provided,  further,  that 
provisions  in  such  charters  for  the  construction,  care, 
maintenance,  repair,  inspection  and  supervision  of  roads, 
highways  and  bridges  for  which  aid  from  the  state  is 
granted,  shall  be  subject  to  such  regulations  and  con- 
ditions as  may  be  imposed  by  the  legislature. 

Whenever  any  county  has  framed  and  adopted  a 
charter,  and  the  same  shall  have  been  approved  by  the 
legislature,  as  herein  provided,  the  general  laws  adopted 
by  the  legislature  in  pursuance  of  sections  4  and  5  of 
this  article,  shall,  as  to  such  county,  be  superseded  by 
said  charter  as  to  matters  for  which,  under  this  section 
it  is  competent  to  make  provision  in  such  charter,  and 
for  which  provision  is  made  therein,  except  as  herein 
otherwise  expressly  provided,  and  except  that  any  such 
charter  shall  not  affect  the  tenure  of  the  office  of  the 
elective  officers  of  the  county,  or  of  any  district,  town- 
ship or  division  thereof,  in  office  at  the  time  such  charter 
goes  into  effect,  and  such  officers  shall  continue  to  hold 
their  respective  offices  until  the  expiration  of  the  term 
for  which  they  shall  have  been  elected,  unless  sooner 
removed  in  the  manner  provided  by  law. 


Art.  XI,  §  8         CONSTITUTION  OP  1879.  336 

The  charter  of  any  county,  adopted  under  the  au- 
thority of  this  section,  may  be  surrendered  and  an- 
nulled with  the  assent  of  two-thirds  of  the  qualified 
electors  of  such  county,  voting  at  a  special  election,  held 
for  that  purpose,  and  to  be  ordered  and  called  by  the 
board  of  supervisors  of  the  county  upon  receiving  a 
written  petition,  signed  and  certified  as  hereinabove 
provided  for  the  purposes  of  the  adoption  of  charters, 
requesting  said  board  to  submit  the  question  of  the  sur- 
render and  annulment  of  such  charter  to  the  qualified 
electors  of  such  county,  and,  in  the  event  of  the  surren- 
der and  annulment  of  any  such  charter,  such  county 
shall  thereafter  be  governed  under  general  laws  in 
force  for  the  government  of  counties. 

The  provisions  of  this  seotion  shall  not  be  applicable 
to  any  county  that  is  consolidated  with  any  city. 
(New  section  added  by  amendment  approved  October 
10,  1911.) 

City  charters,  how  framed  and  ratified. 

Sec.  8.  Any  city  containing  a  population  of  more 
than  three  thousand  five  hundred  inhabitants  as  ascer- 
tained and  established  by  the  last  preceding  census, 
taken  under  the  direction  of  the  Congress  of  the  United 
States,  or  by  a  census  of  said  city,  taken,  subsequent  to 
the  aforesaid  census,  under  the  direction  of  the  legis- 
lative body  thereof,  under  laws  authorizing  the  taking 
of  the  census  of  cities,  may  frame  a  charter  for  its 


337  CONSTITUTION  OF  1S79.         Art.  XI,  §  8 

own  government,  consistent  with,  and  subject  to,  the 
constitution,  (or,  having  framed  such  a  charter,  may 
frame  a  new  one),  by  causing  a  board  of  fifteen  free- 
holders, who  shall  have  been,  for  at  least  five  years^ 
qualified  electors  thereof,  to  be  elected  by  the  qualified 
electors  of  said  city,  at  a  general  or  special  municipal 
election.  Said  board  of  freeholders  may  be  so  elected 
in  pursuance  of  an  ordinance  adopted  by  a  vote  of  two- 
thirds  of  all  the  members  of  the  council,  or  other  legis- 
lative body,  of  such  city,  declaring  that  the  public 
interest  requires  the  election  of  such  board  for  the  pur- 
pose of  preparing  and  proposing  a  charter  for  said  city, 
or  in  pursuance  of  a  petition  of  qualified  electors  of  said 
city,  as  hereinafter  provided.  Such  petition,  signed  by 
fifteen  per  centum  of  the  qualified  electors  of  said  city 
computed  upon  the  total  number  of  votes  cast  therein 
for  all  candidates  for  governor  at  the  last  preceding 
general  election  at  which  a  governor  was  elected,  pray- 
ing for  the  election  of  a  board  of  fifteen  freeholders  to 
prepare  and  propose  a  charter  for  said  city,  may  be 
filed  in  the  office  of  the  city  clerk  thereof.  It  shall  be 
the  duty  of  said  city  clerk,  within  twenty  days  after 
the  filing  of  said  petition,  to  examine  the  same  and  to 
ascertain  from  the  record  of  the  registration  of  electors 
of  the  county,  showing  the  registration  of  electors  of 
said  city,  whether  the  petition  is  signed  by  the  requisite 
number  of  qualified  electors  of  such  city.     If  required 

Constitution — 22 


Art.  XI,  §  8         CONSTITUTION  OF  1879.  338 

by  said  clerk,  the  council,  or  other  legislative  body,  of 
said  city  shall  authorize  him  to  employ  persons  specially 
to  assist  him  in  the  work  of  examining  such  petition, 
and  shall  provide  for  their  compensation.  Upon  the 
completion  of  such  examination,  said  clerk  shall  forth- 
with attach  to  said  petition  his  certificate,  properly 
dated,- showing  the  result  thereof,  and  if,  by  said  certi- 
ficate, it  shall  appear  that  said  petition  is  signed  by 
the  requisite  number  of  qualified  electors,  said  clerk 
shall  present  the  said  petition  to  said  council,  or  other 
legislative  body,  at  its  next  regular  meeting  after  the 
date  of  such  certificate.  Upon  the  adoption  of  such 
ordinance,  or  the  presentation  of  such  petition,  said 
council,  or  other  legislative  body,  shall  order  the  hold- 
ing of  a  special  election  for  the  purpose  of  electing  such 
board  of  freeholders,  which  said  special  election  shall 
be  held  not  less  than  twenty  days,  nor  more  than 
sixty  days  after  the  adoption  of  the  ordinance  afore- 
said, or  the  presentation  of  said  petition  to  said  council, 
or  other  legislative  body;  provided,  that  if  a  general 
municipal  election  shall  occur  in  said  city  not  less  than 
twenty  days,  nor  more  than  sixty  days,  after  the  adop- 
tion of  the  ordinance  aforesaid,  or  the  presentation  of 
said  petition  to  said  council,  or  other  legislative  body, 
said  board  of  freeholders  may  be  elected  at  such  gen- 
eral municipal  election.  Candidates  for  election  as 
members  of  said  board  of  freeholders  shall  be  nominated 
by  petition,  substantially  in  the  same  manner  as  may 


339  CONSTITUTION  OP  1879.         Art.  XI,  §  8 

be  provided  by  general  laws  for  the  nomination  by  pe- 
tition of  electors  of  candidates  for  public  offices  to  be 
voted  for  at  general  elections. 

It  shall  be  the  duty  of  said  board  of  freeholders, 
within  one  hundred  and  twenty  days  after  the  result  of 
such  election  shall  have  been  declared  by  said  council, 
or  other  legislative  body,  to  prepare  and  propose  a 
charter  for  said  city,  which  shall  be  signed  in  dupli- 
cate by  the  members  of  said  board  of  freeholders,  or 
a  majority  of  them,  and  be  filed,  one  copy  in  the  office 
of  the  city  clerk  of  said  city,  and  the  other  in  the  office 
of  the  county  recorder  of  the  county  in  which  said  city 
is  situated.  Said  council,  or  other  legislative  body, 
shall,  thereupon,  cause  said  proposed  charter  to  be  pub- 
lished for  at  least  ten  times,  in  a  daily  newspaper  of 
general  circulation,  printed,  published  and  circulated 
in  said  city;  provided,  that  in  any  city  where  no  such 
daily  newspaper  is  printed,  published  and  circulated, 
such  proposed  charter  shall  be  published,  for  at  least 
three  times,  in  at  least  one  weekly  newspaper  of  general 
circulation,  printed,  published  and  circulated  in  said 
city,  and,  in  any  event,  the  first  publication  of  such 
proposed  charter  shall  be  made  within  fifteen  days 
after  the  filing  of  a  copy  thereof,  as  aforesaid,  in  the 
office  of  the  city  clerk.  Such  proposed  charter  shall 
be  submitted  by  said  council,  or  other  legislative  body, 
to  the  qualified  electors  of  said  city  at  a  special  election 
held  not  less  than  twenty  days,  nor  more  than  forty 


Art.  XI,  §  8         CONSTITUTION  OF  1879.  340 

days,  after  the  completion  of  such  publication;  pro- 
vided, that  if  a  general  municipal  election  shall  occur 
in  said  city  not  less  than'  twenty  days,  nor  more  than 
forty  days,  after  the  completion  of  such  publication, 
then  such  proposed  charter  may  be  so  submitted  at  such 
general  election.  If  a  majority  of  such  qualified  electors 
voting  thereon  at  such  general  or  special  election  shall 
vote  in  favor  of  such  proposed  charter,  it  shall  be 
deemed  to  be  ratified,  and  shall  be  submitted  to  the 
legislature,  if  it  be  in  regular  session,  otherwise  at  its 
next  regular  session,  or  it  may  be  submitted  to  the  legis- 
lature in  extraordinary  session,  for  its  approval  or  re- 
jection as  a  whole,  without  power  of  alteration  or 
amendment.  Such  approval  may  be  made  by  concur- 
rent resolution,  and  if  approved  by  a  majority  vote  of 
the  members  elected  to  each  house,  such  charter  shall 
become  the  charter  of  such  city,  or,  if  such  city  be  con- 
solidated with  a  county,  then  of  such  city  and  county, 
and  shall  become  the  organic  law  thereof,  and  supersede 
any  existing  charter,  (whether  framed  under  the  pro- 
visions of  this  section  of  the  constitution  or  not,)  and 
all  amendments  thereof,  and  all  laws  inconsistent  with 
such  charter.  A  copy  of  such  charter,  certified  by  the 
mayor,  or  other  chief  executive  officer  of  said  city,  and 
authenticated  under  the  seal  of  such  city,  setting  forth 
the  submission  of  such  charter  to  the  electors  of  said 
city,  and  its  ratification  by  them,  shall,  after  the  ap- 
proval of  such  charter  by  the  legislature,  be  made  in  du- 


341  CONSTITUTION  OF  1879.         Art.  XI,  §  8 

plicate  and  deposited,  one  in  the  office  of  the  secretary 
of  state  and  the  other,  after  being  recorded  in  the  office 
of  the  recorder  of  the  county  in  which  such  city  is  situ- 
ated, shall  be  deposited  in  the  archives  of  the  city,  and 
thereafter  all  courts  shall  take  judicial  notice  of  said 
charter. 

The  charter,  so  ratified,  may  be  amended  by  proposals 
therefor  submitted  by  the  council,  or  other  legislative 
body  of  the  city,  to  the  qualified  electors  thereof  at  a 
general  or  special  municipal  election  held  at  intervals 
of  not  less  than  two  years  (except  that  charter  amend- 
ments may  be  submitted  at  a  general  municipal  election 
at  an  interval  of  less  than  two  years  after  the  last  elec- 
tion on  charter  amendments  provided  that  no  other 
election  on  charter  amendments  has  been  held  since  the 
beginning  of  the  last  regular  session  of  the  state  legis- 
lature or  shall  be  held  prior  to  the  next  regular  session 
of  the  state  legislature),  and  held  not  less  than  twenty 
days,  nor  more  than  forty  days  after  the  completion  of 
the  publication  of  such  proposals  for  ten  times  in  a 
daily  newspaper  of  general  circulation,  printed,  pub- 
lished and  circulated  in  said  city,  or  for  three  times  in 
at  least  one  weekly  newspaper  of  general  circulation, 
printed,  published  and  circulated  in  said  city,  if  there 
be  no  such  daily  newspaper.  If  a  majority  of  such 
qualified  electors  voting  thereon  at  such  general  or 
special  election  shall  vote  in  favor  of  any  such  pro- 
posed amendment  or  amendments,  or  any  amendment 


Art.  XI,  §  8         CONSTITUTION  OF  1879.  342 

or  amendments  proposed  by  petition,  as  hereinafter 
provided,  snch  amendment  or  amendments  shall  be 
deemed  to  be  ratified,  and  shall  be  forthwith  submitted 
to  the  legislature,  if  it  be  in  regular  session,  otherwise 
at  its  next  regular  session,  or  may  be  submitted  to  the 
legislature  in  extraordinary  session,  for  approval  or 
rejection  as  a  whole,  without  power  of  alteration  or 
amendment,  and  if  approved  by  the  legislature,  as 
herein  provided  for  the  approval  of  the  charter,  such 
charter  shall  be  amended  accordingly.  A  copy  of  such 
amendment  or  amendments  shall,  after  the  approval 
thereof  by  the  legislature,  be  made  in  duplicate,  and 
shall  be  authenticated,  certified,  recorded  and  filed  as 
herein  provided  for  the  charter,  and  with  like  force 
and  effect.  Whenever  a  petition  signed  by  fifteen  per 
centum  of  the  qualified  electors  of  the  city,  computed 
upon  the  total  number  of  votes  cast  therein  for  all  can- 
didates for  governor  at  the  last  preceding  general  elec- 
tion at  which  a  governor  was  elected,  is  filed  in  the 
office  of  the  city  clerk  of  said  city,  petitioning  the  coun- 
cil, or  other  legislative  body  thereof,  to  submit  any  pro- 
posed amendment  or  amendments  to  the  charter  of 
such  city,  which  amendment  or  amendments  shall  be  set 
forth  in  full  in  such  petition,  to  the  qualified  electors 
thereof,  such  petition  shall  forthwith  be  examined  and 
certified  by  the  city  clerk,  and  if  signed  by  the  requisite 
number  of  qualified  electors  of  said  city,  it  shall  be 
presented  to  the  said  council,  or  other  legislative  body, 


34-3  CONSTITUTION  OF  1879.         Art.  XI,  §  8 

by  the  said  city  clerk,  as  hereinbefore  provided  for 
petitions  for  the  election  of  boards  of  freeholders. 
Upon  the  presentation  of  said  petition  to  said  council, 
or  other  legislative  body,  said  council,  or  other  legisla- 
live  body,  must  submit  the  amendment  or  amendments 
set  forth  in  said  petition  to  the  qualified  electors  of 
said  city,  at  a  general  or  special  municipal  election, 
held  not  less  than  twenty,  nor  more  than  forty,  days 
after  the  completion  of  the  publication  of  such  pro- 
posed amendment  or  amendments,  in  the  same  manner 
as  hereinbefore  provided  in  the  case  of  the  submission 
of  any  proposed  amendment  or  amendments  to  such 
charter,  proposed  and  submitted  by  the  council,  or  other 
legislative  body.  The  first  publication  of  any  proposed 
amendment  or  amendments  to  such  charter  so  proposed 
by  petition  shall  be  made  within  fifteen  days  after  the 
aforesaid  presentation  of  said  petition  to  said  council, 
or  other  legislative  body.  In  submitting  any  such 
charter,  amendment  or  amendments  thereto,  any  alter- 
native article  or  proposition  may  be  presented  for  the 
choice  of  the  electors,  and  may  be  voted  on  separately 
without  prejudice  to  others. 

Every  special  election  held  in  any  city  under  the 
provisions  of  this  section,  for  the  election  of  a  board  of 
freeholders,  or  for  the  submission  of  any  proposed 
charter  or  any  amendment  or  amendments  thereto,  shall 
be  called  by  the  council,  or  other  legislative  body 
thereof,  by  ordinance,  which  shall  specify  the  purpose 


Art.  XI,  §  8         CONSTITUTION  OF  1879.  344 

and  time  of  such  election,  and  shall  establish  the  election 
precincts  and  designate  the  polling  places  therein,  and 
the  names  of  the  election  officers  for  each  such  precinct. 
Such  ordinance  shall,  prior  to  such  election,  be  pub- 
lished five  times  in  a  daily  newspaper,  or  twice  in  a 
weekly  newspaper,  if  there  be  no  such  daily  newspaper 
printed,  published  and  circulated  in  said  city.  Such 
election  shall  be  held  and  conducted,  the  returns  thereof 
canvassed,  and  the  result  thereof  declared  by  the  coun- 
cil, or  other  legislative  body  of  such  city  in  the  manner 
that  is  now  or  may  be  hereafter  provided  by  general  law 
for  such  elections  in  the  particulars  wherein  such  pro- 
vision is  now  or  may  hereafter  be  made  therefor,  and  in 
all  other  respects  in  the  manner  provided  by  law  for 
general  municipal  elections,  in  so  far  as  the  same  may 
be  applicable  thereto. 

"Whenever  any  board  of  freeholders  shall  be  elected, 
or  any  such  proposed  charter  or  amendment  or  amend- 
ments thereto  shall  be  submitted  at  a  general  municipal 
election,  the  laws  governing  the  election  of  city  officers, 
or  the  submission  of  propositions  to  the  vote  of  electors, 
shall  be  followed  in  so  far  as  the  same  may  be  appli- 
cable thereto  and  not  inconsistent  herewith. 

It  shall  be  competent  in  any  charter  framed  by  any 
city  under  the  authority  given  in  this  section,  or  by 
amendment  to  such  charter,  to  provide,  in  addition  to 
those  provisions  allowed  by.  this  constitution  and  by  the 
laws  of  the  state,  for  the  establishment  of  a  borough 


345  CONSTITUTION  OP  1879.         Art.  XI,  §  8 

system  of  government  for  the  whole  or  any  part  of  the 
territory  of  such  city,  by  which  one  or  more  districts 
may  be  created  therein,  which  districts  shall  be  known  as 
boroughs,  and  which  shall  exercise  such  special  niiiiiici- 
pal  powers  as  may  be  granted  by  such  charter,  and  for 
the  organization,  regulation,  government  and  jurisdic- 
tion of  such  boroughs. 

All  the  provisions  of  this  section  relating  to  the  city 
clerk  shall,  in  any  city  and  county,  be  deemed  to  relate 
to  the  clerk  of  the  legislative  body  thereof.  (Amend- 
ment approved  October  10,  1911.) 

[AMENDMENT  OF  1906.] 
Sec.  8.  Any  city  containing  a  population  of  more  than 
three  thousand  five  hundred  inhabitants  may  frame  a  charter 
for  its  own  government,  consistent  with  and  subject  to  the 
constitution,  (or,  having  framed  such  a  charter,  may  frame 
a  new  one),  by  causing  a  board  of  fifteen  freeholders,  who 
shall  have  been  for  at  least  five  years  qualified  electors  thereof, 
to  be  elected  by  the  qualified  voters  of  said  city  at  any  general 
or  special  election,  whose  duty  it  shall  be,  within  ninety  days 
after  such  election,  to  prepare  and  propose  a  charter  for  such 
city,  whicH  shall  be  signed  in  duplicate  by  the  members  of  such 
board,  or  a  majority  of  them,  and  returned,  one  copy  to  the 
mayor  thereof,  or  other  chief  executive  officer  of  such  city, 
and  the  other  to  the  recorder  of  the  county.  Such  proposed 
charter  shall  then  be  published  in  two  daily  newspapers  of 
general  circulation  in  such  city,  for  at  least  twenty  days,  and 
the  first  publication  shall  be  made  within  twenty  days  after 
the  completion  of  the  charter;  provided,  that  in  cities  con- 
taining a  population  of  not  more  than  ten  thousand  inhabitants, 


Art.  XI,  §  8         CONSTITUTION  OP  1879.  346 

such  proposed  charter  shall  be  published  in  one  such  daily 
newspaper;  and  within  thirty  days  after  such  publication  it 
shall  be  submitted  to  the  qualified  electors  of  said  city  at  a 
general  or  special  election,  and  if  a  majority  of  such  qualified 
electors  voting  thereon  shall  ratify  the  same,  it  shall  thereafter 
be  submitted  to  the  legislature  for  its  approval  or  rejection 
as  a  whole,  without  power  of  alteration  or  amendment.  Such 
approval  may  be  made  by  concurrent  resolution,  and  if  ap- 
proved by  a  majority  vote  of  the  members  elected  to  each 
house,  it  shall  become  the  charter  of  such  city,  or,  if  such  city 
be  consolidated  with  a  county,  then  of  such  city  and  county, 
and  shall  become  the  organic  law  thereof,  and  supersede  any 
existing  charter,  (whether  framed  under  the  provisions  of  this 
section  of  the  constitution  or  not,)  and  all  amendments  thereof, 
and  all  laws  inconsistent  with  such  charter.  A  copy  of  such 
charter,  certified  by  the  mayor,  or  chief  executive  officer,  and 
authenticated  by  the  seal  of  such  city,  setting  forth  the  sub- 
mission of  such  charter  to  the  electors,  and  its  ratification  by 
them,  shall  after  the  approval  of  such  charter  by  the  legis- 
lature, be  made  in  duplicate,  and  deposited,  one  in  the  office 
of  the  secretary  of  state,  and  the  other,  after  being  recorded 
in  said  recorder's  office  shall  be  deposited  in  the  archives  of 
the  city,  and  thereafter  all  courts  shall  take  judicial  notice 
of  said  charter.  The  charter,  so  ratified,  may  be  amended  at 
.intervals  of  not  less  than  two  years  by  proposals  therefor,  sub- 
mitted by  the  legislative  authority  of  the  city  to  the  qualified 
electors  thereof  at  a  general  or  special  election  held  at  least 
forty  days  after  the  publication  of  such  proposals  for  twenty 
days  in  a  daily  newspaper  of  general  circulation  in  such  city, 
and  ratified  by  a  majority  of  the  electors  voting  thereon,  and 
approved  by  the  legislature  as  herein  provided  for  the  approval 
of  the  charter.  Whenever  fifteen  per  cent  of  the  qualified 
voters  of  the  city  shall  petition  the  legislative  authority  thereof 


347  CONSTITUTION  OP  1879.  Art.  XI,  §  8 

to  suTDinit  any  proposed  amendment  or  amentlments  to  said 
charter  to  the  qualified  voters  thereof  for  approval,  the  legis- 
lative authority  thereof  must  submit  the  same.  In  submitting 
any  such  charter,  or  amendments  thereto,  any  alternative  article 
or  proposition  may  be  presented  for  the  choice  of  the  voters, 
and  may  be  voted  on  separately  without  prejudice  to  others. 
(Amendment  adopted  November  6,  1906.) 

[AMENDMENT  OF  1902.] 
Sec.  8.  Any  city  containing  a  population  of  more  than  three 
thousand  five  hundred  inhabitants  may  frame  a  charter  for  its 
own  government,  consistent  with  and  subject  to  the  constitu- 
tion and  laws  of  this  state,  by  causing  a  board  of  fifteen  free- 
holders, who  shall  have  been  for  at  least  five  years  qualified 
electors  thereof,  to  be  elected  by  the  qualified  voters  of  said 
city  at  any  general  or  special  election,  whose  duty  it  shall  be, 
within  ninety  days  after  such  election  to  prepare  and  pro- 
pose a  charter  for  such  city,  which  shall  be  signed  in  duplicate 
by  the  members  of  such  board,  or  a  majority  of  them,  and 
returned,  one  copy  to  the  mayor  thereof,  or  other  chief  execu- 
tive oflScer  of  such  city,  and  the  other  to  the  recorder  of  the 
county.  Such  proposed  charter  shall  then  be  published  in  two 
daily  newspapers  of  general  circulation  in  such  city,  for  at 
least  twenty  days,  and  the  first  publication  shall  be  made 
within  twenty  days  after  the  completion  of  the  charter;  pro- 
vided, that  in  cities  containing  a  population  of  not  more  than 
ten  thousand  inhabitants,  such  proposed  charter  shall  be  pub- 
lished in  one  such  daily  newspaper;  and  within  not  less  than 
thirty  days  after  such  publication  it  shall  be  submitted  to  the 
qualified  electors  of  said  city  at  a  general  or  special  election, 
and  if  a  majority  of  such  qualified  electors  voting  thereon  shall 
ratify  the  same,  it  shall  thereafter  be  submitted  to  the  legis- 
lature for  its  approval  or  rejection  as  a  whole,  without  power 


Art.  XI,  §  8         CONSTITUTION  OF  1879.  348 

of  alteration  or  amendment.  Such  approval  may  be  made  by- 
concurrent  resolution,  and  if  approved  by  a  majority  vote  of 
the  members  elected  to  each  house,  it  shall  become  the  charter 
of  such  city,  or,  if  such  city  be  consolidated  with  a  county, 
then  of  such  city  and  county,  and  shall  become  the  organic 
law  thereof,  and  supersede  any  existing  charter  and  all  amend- 
ments thereof,  and  all  laws  inconsistent  with  such  charter.  A 
copy  of  such  charter,  certified  by  the  mayor,  or  chief  executive 
officer,  and  authenticated  by  the  seal  of  such  city,  sotting  forth 
the  submission  of  such  charter  to  the  electors,  and  its  ratifica- 
tion by  them,  shall  after  the  approval  of  such  charter  by  the 
legislature,  be  made  in  duplicate,  and  deposited,  one  in  the 
office  of  the  secretary  of  state,  and  the  other,  after  being  re- 
corded in  said  recorder's  office,  shall  be  deposited  in  the  archives 
of  the  city,  and  thereafter  all  courts  shall  take  judicial  notice 
of  said  charter.  The  charter,  so  ratified,  may  be  amended  at 
intervals  of  not  less  than  two  years  by  proposals  therefor, 
submitted  by  the  legislative  authority  of  the  city  to  the  quali- 
fied electors  thereof  at  a  general  or  special  election,  held  at 
least  forty  days  after  the  publication  of  such  proposals  for 
twenty  days  in  a  daily  newspaper  of  general  circulation  in  such 
city,  and  ratified  by  a  majority  of  the  electors  voting  thereon, 
and  approved  by  the  legislature  as  herein  provided  for  the 
approval  of  the  charter.  Whenever  fifteen  per  cent  of  the 
qualified  voters  of  the  city  shall  petition  the  legislative  author- 
ity thereof  to  submit  any  proposed  amendment  or  amendments 
to  said  charter  to  the  qualified  voters  thereof  for  approval, 
the  legislative  authority  thereof  must  submit  the  same.  In 
submitting  any  such  charter,  or  amendments  thereto,  any  alter- 
native article  or  proposition  may  be  presented  for  the  choice 
of  the  voters,  and  may  be  voted  on  separately  without, preju- 
dice to  others.     (Amendment  adopted  November  4,   1902.) 


349  CONSTITUTION  OF  1879.         Art.  XI,  §  8 

[AMENDMENT  OF  1892.] 
See.  8.  Any  city  containing  a  population  of  more  than 
three  thousand  five  hundred  inhabitants  may  frame  a  charter 
for  its  own  government,  consistent  with  and  subject  to  the 
constitution  and  laws  of  this  state,  by  causing  a  board  of 
fifteen  freeholders,  who  shall  have  been  for  at  least  five  years 
qualified  electors  thereof,  to  be  elected  by  the  qualified  voters 
of  said  city  at  any  general  or  special  election,  whose  duty  it 
shall  be,  within  ninety  days  after  such  election,  to  prepare 
and  propose  a  charter  for  such  city,  which  shall  be  signed,  in 
duplicate,  by  the  members  of  such  board,  or  a  majority  of 
them,  and  returned,  one  copy  to  the  mayor  thereof,  or  other 
chief  executive  ofiicer  of  such  city,  and  the  other  to  the  re- 
corder of  the  county.  Such  proposed  charter  shall  then  be 
published  in  two  daily  newspapers  of  general  circulation  in 
such  city,  for  at  least  twenty  days,  and  the  first  publication 
shall  be  made  within  twenty  days  after  the  completion  of  the 
charter;  provided,  that  in  cities  containing  a  population  of  no 
more  than  ten  thousand  inhabitants  such  proposed  charter  shall 
be  published  in  one  such  daily  newspaper;  and  within  not 
less  than  thirty  days  after  such  publication  it  shall  be  sub- 
mitted to  the  qualified  electors  of  said  city  at  a  general  or 
special  election,  and  if  a  majority  of  such  qualified  electors 
voting  thereat  shall  ratify  the  same,  it  shall  thereafter  be 
submitted  to  the  legislature  for  its  approval  or  rejection  as  a 
whole,  without  power  of  alteration  or  amendment.  Such  ap- 
proval may  be  made  by  concurrent  resolution,  and  if  approved 
by  a  majority  vote  of  the  members  elected  to  each  house,  it 
shall  become  the  charter  of  such  city,  or  if  such  city  be  con- 
solidated with  a  county,  then  of  such  city  and  county,  and 
shall  become  the  organic  law  thereof,  and  supersede  any  exist- 
ing charter  and  all  amendments  thereof,  and  all  laws  incon- 
sistent  with   such   charter.     A   copy  of   such   charter,  certified 


A.rt.  XI,  §  8         CONSTITUTION  OF  1879.  350 

by  the  mayor,  or  chief  executive  officer,  and  authenticated  by 
the  seal  of  such  city,  setting  forth  the  submission  of  such 
charter  to  the  electors,  and  its  ratification  by  them,  shall,  after 
the  approval  of  such  charter  by  the  legislature,  be  made,  in 
duplicate,  and  deposited,  one  in  the  office  of  the  secretary  of 
state,  and  the  other,  after  being  recorded  in  said  recorder's 
office,  shall  be  deposited  in  the  archives  of  the  city,  and  there- 
after all  courts  shall  take  judicial  notice  of  said  charter.  The 
charter,  so  ratified,  may  be  amended  at  intervals  of  not  less 
than  two  years  by  proposals  therefor,  submitted  by  the  legis- 
lative authority  of  the  city  to  the  qualified  electors  thereof,  at 
a  general  or  special  election,  held  at  least  forty  days  after  the 
publication  of  such  proposals  for  twenty  days  in  a  daily  news- 
paper of  general  circulation  in  such  city,  and  ratified  by  at 
least  three-fifths  of  the  qualified  electors  voting  thereat,  and 
approved  by  the  legislature,  as  herein  provided  for  the  ap- 
proval of  the  charter.  In  submitting  any  such  charter,  or 
amendments  thereto,  any  alternative  article  or  proposition  may 
be  presented  for  the  choice  of  the  voters,  and  may  be  voted 
on  separately  without  prejudice  to  others.  (Eatification  de- 
clared December  30,  1892.) 

[AMENDMENT  OF  1887.] 
Sec.  8.  Any  city  or  consolidated  city  and  county,  containing 
a  population  of  more  than  one  hundred  thousand  inhabitants, 
may  frame  a  charter  for  its  own  government,  consistent  with 
and  subject  to  the  constitution  and  laws  of  this  state,  by 
causing  a  board  of  fifteen  freeholders,  who  shall  have  been 
for  at  least  five  years  qualified  electors  thereof,  to  be  elected 
by  the  qualified  voters  of  such  city,  or  city  and  county,  at  any 
general  or  special  election,  whose  duty  it  shall  be,  within 
one  hundred  days  after  such  election,  to  prepare  and  propose 
a  charter  for  Buch  city,   or   city  and   county,  which  shall  be 


351  CONSTITUTION  OF  1879.  Art.  XI,  §  8 

signed  in  duplicate  by  the  members  of  such  board,  or  a  major- 
ity of  them,  and  returned,  one  copy  thereof  to  the  mayor,  or 
other  chief  executive  officer  of  such  city  or  city  and  county, 
and  the  other  to  the  recorder  of  deeds  of  the  county,  or  city 
and  county.  Such  proposed  charter  shall  then  be  published 
in  two  daily  papers  of  general  circulation  in  such  city,  or  city 
and  county,  for  at  least  twenty  days,  and  such  publication  shall 
be  commenced  within  twenty  (20)  days  after  the  completion 
of  the  charter,  and  within  not  less  than  thirty  days  after  the 
completion  of  such  publication,  it  shall  be  submitted  by  the 
legislative  authority  of  said  city,  or  city  and  county,  to  the 
qualified  electors  thereof  at  a  general  or  special  election,  and 
if  a  majority  of  such  qualified  electors  voting  thereat  shall 
ratify  the  same,  it  shall  thereafter  be  submitted  to  the  legis- 
lature for  its  approval  or  rejection  as  a  whole,  without  power 
of  alteration  or  amendment;  and  if  approved  by  a  majority 
vote  of  the  members  elected  to  each  house,  it  shall  become  the 
charter  of  such  city,  or  if  such  city  be  consolidated  with  a 
county,  then  of  such  city  and  county,  and  shall  become  the 
organic  law  thereof,  and  supersede  any  existing  charter  and 
all  amendments  thereof,  and  all  special  laws  inconsistent  with 
such  charter.  A  copy  of  such  charter,  certified  by  the  mayor 
or  other  chief  executive  officer,  and  authenticated  by  the  seal 
of  such  city,  or  city  and  county,  setting  forth  the  submission 
of  such  charter  to  the  electors,  and  its  ratification  by  them, 
shall  be  made  in  duplicate,  and  deposited,  one  in  the  office  of 
the  secretary  of  state,  the  other,  after  being  recorded  in  the 
office  of  the  recorder  of  deeds  of  the  county,  or  city  and  county, 
among  the  archives  of  the  city,  or  city  and  county.  All  courts 
shall  take  judicial  notice  thereof.  The  charter  so  ratified  may 
be  amended  at  intervals  of  not  less  than  two  years,  by  pro- 
posals therefor  submitted  by  legislative  authority  of  this  city, 
or  city  and  county,  to  the  qualified  voters  thereof  at  a  general 


x\rt.  XI,  §  8         CONSTITUTION  OF  1879.  352 

or  special  election  held  at  least  sixty  days  after  the  publication 
of  such  proposals,  and  ratified  by  at  least  three-fifths  of  the 
qualified  electors  voting  thereat,  and  approved  by  the  legis- 
lature as  herein  provided,  for  the  approval  of  the  charter.  In 
submitting  any  such  charter,  or  amendment  thereto,  any  alter- 
native article  or  proposition  may  be  presented  for  the  choice 
of  the  voters,  and  may  be  voted  on  separately  without  preju- 
dice to  others.  Any  city,  or  consolidated  city  or  county,  con- 
taining a  population  of  more  than  ten  thousand  and  not  more 
than  one  hundred  thousand  inhabitants,  may  frame  a  charter 
for  its  own  government,  consistent  with  and  subject  to  the 
constitution  and  laws  of  the  state,  by  causing  a  board  of 
fifteen  freeholders,  who  shall  have  been  for  at  least  five  years 
qualified  electors  thereof,  to  be  elected  by  the  qualified  voters 
of  said  city,  or  city  and  county,  at  any  general  or  special 
election,  whose  duty  it  shall  be,  within  ninety  days  after  such 
election,  to  prepare  and  propose  a  charter  for  such  city,  or 
city  and  county,  which  shall  be  signed  in  duplicate  by  the 
members  of  such  board,  or  a  majority  of  them,  and  returned, 
one  copy  thereof  to  the  mayor,  or  other  chief  executive  oflicer 
of  said  city  or  city  and  county,  and  the  other  to  the  recorder 
of  the  county,  or  city  and  county.  Such  proposed  charter  shall 
then  be  published  in  two  daily  papers  of  general  circulation 
in  such  city,  or  city  and  county,  for  at  least  twenty  days,  and 
publication  shall  be  commenced  within  twenty  days  after  the 
comjiletion  of  the  charter;  and  within  not  less  than  thirty  days 
after  the  completion  of  such  publication  it  shall  be  submitted 
by  the  legislative  authority  of  said  city,  or  city  and  county, 
to  the  qualified  electors  of  said  city,  or  city  and  county,  at  a 
general  or  special  election,  and  if  a  majority  of  such  qualified 
electors  voting  thereat  shall  ratify  the  same,  it  shall  thereafter 
be  submitted  to  the  legislature  for  its  approval  or  rejection 
fts  a  whole,   without   power  of  alteration   or  amendment,   and 


353  CONSTITUTION  OF  1879.         Art.  XI,  §  8 

if  approved  by  a  majority  vote  of  the  members  elected  to  each 
house,  it  shall  become  the  charter  of  such  city,  or  if  such 
city  be  consolidated  with  a  county,  then  of  such  city  and 
county,  and  shall  become  the  organic  law  thereof,  and  shall 
supersede  any  existing  charter  and  all  amendments  thereof,  and 
all  special  laws  inconsistent  with  such  charter.  A  copy  of 
such  charter,  certified  by  the  mayor,  or  other  chief  executive 
officer,  and  authenticated  by  the  seal  of  such  city,  or  city 
and  county,  setting  forth  the  submission  of  such  charter  to 
the  electors,  and  its  ratification  by  them,  shall  be  made  in 
duplicate,  and  deposited,  one  in  the  office  of  the  secretary 
of  state,  and  the  other,  after  being  recorded  in  the  office  of 
the  recorder  of  deeds  of  the  county,  or  city  and  county,  among 
the  archives  of  the  city,  or  city  and  county;  and  thereafter 
all  courts  shall  take  judicial  notice  thereof.  The  charter  so 
ratified  may  be  amended,  at  intervals  of  not  less  than  two 
years,  by  proposals  therefor,  submitted  by  the  legislative  au- 
thority of  the  city,  or  city  and  county,  to  the  qualified  electors 
thereof,  at  a  general  or  special  election  held  at  least  sixty 
days  after  the  publication  of  such  proposals,  and  ratified  by 
at  least  three-fifths  of  the  qualified  electors  voting  thereat, 
and  approved  by  the  legislature  as  herein  provided  for  the  ap- 
proval of  the  charter.  In  submitting  any  such  charter,  or 
amendment  thereto,  any  alternative  article  or  proposition  may 
be  presented  for  the  choice  of  the  voters,  and  may  be  voted 
on  separately  without  prejudice  to  others. 

[ORIGINAL   SECTION.] 

Sec.  8.     Any  city  containing  a  population  of  more  thnn   one 

hundred  thousand  inhabitants  may  frame  a  charter  for  its  own 

government,    consistent    with    and    subject    to    the    constitution 

And  laws  of  this  state,  by  causing  a  board  of  fifteen  freehold- 

Constitutioa — 23 


Art.  XI,  §  8         CONSTITUTION  OF  1879.  354 

erg,  who  shall  have  been  for  at  least  five  years  qualified  electors 
thereof,  to  be  elected  by  the  qualified  voters  of  such  city,  at 
any  general  or  special  election,  whose  duty  it  shall  be,  within 
ninety  days  after  such  election,  to  prepare  and  propose  a 
charter  for  such  city,  which  shall  be  signed  in  duplicate  by 
the  members  of  such  board,  or  a  majority  of  them,  and  re- 
turned one  copy  thereof  to  the  mayor,  or  other  chief  executive 
oflScer  of  such  city,  and  the  other  to  the  recorder  of  deeds 
of  the  county.  Such  proposed  charter  shall  then  be  published 
in  two  daily  papers  of  general  circulation  in  such  city  for 
at  least  twenty  days,  and  within  not  less  than  thirty  days 
after  such  publication  it  shall  be  submitted  to  the  qualified 
electors  of  such  city  at  a  general  or  special  election,  and  if 
a  majority  of  such  qualified  electors  voting  thereat  shall  ratify 
the  same,  it  shall  thereafter  be  submitted  to  the  legislature 
for  its  approval  or  rejection  as  a  whole,  without  power  of 
alteration  or  amendment,  and  if  approved  by  a  majority  vote 
of  the  members  elected  to  each  house,  it  shall  become  the 
charter  of  such  city,  or  if  such  city  be  consolidated  with  a 
county,  then  of  such  city  and  county,  and  shall  become  the 
organic  law  thereof,  and  supei'sede  any  existing  charter  and 
all  amendments  thereof,  and  all  special  laws  inconsistent  with 
such  charter.  A  copy  of  such  charter,  certified  by  the  mayor, 
or  chief  executive  officer  and  authenticated  by  the  seal  of  such 
city,  setting  forth  the  submission  of  such  charter  to  the 
electors,  and  its  ratification  by  them,  shall  be  made  in  dupli- 
cate, and  deposited,  one  in  the  office  of  the  secretary  of  state, 
the  other,  after  being  recorded  in  the  office  of  the  recorder 
of  deeds  of  the  county,  or  city  and  county,  among  the  archives 
of  the  city,  all  courts  shall  take  judicial  notice  thereof.  The 
charter  so  ratified  may  be  amended  at  intervals  of  not  less 
than  two  years,  by  proposals  therefor  submitted  by  legislative 
authority  of  the  city,  to  the  qualified  voters  thereof  at  a  gen- 


355  CONSTITUTION  OF  1879.         Art.  XI,  §  8 

eral  or  special  election  held  at  least  sixty  days  after  the 
publication  of  such  proposals,  and  ratified  by  at  least  three- 
fifths  of  the  qualified  electors  voting  thereat,  and  approved  by 
the  legislature  as  herein  provided  for  the  approval  of  the 
charter.  In  submitting  any  such  charter,  or  amendment  thereto, 
any  alternative  article  or  proposition  may  be  presented  for 
the  choice  of  voters,  and  may  be  voted  on  separately  without 
prejudice  to  others. 

CHARTERS — In  general. — This  section  is  self-executing. 
(People  v.  Hoge,  55  Cal.  612.) 

The  provisions  of  this  section  as  to  the  adoption  of  the 
charter  are  mandatory  and  prohibitory,  and  a  failure  to  ob- 
serve them  will  invalidate  the  charter.  (People  v.  Gunn,  85 
Cal.  238,  24  Pac.  718.) 

The  purpose  of  this  section  was  to  emancipate  municipal 
governments  from  the  authority  and  control  formerly  exercised 
over  them  by  the  legislature.     (People  v.  Hoge,  55  Cal.  612.) 

The  right  to  frame  a  charter  is  not  a  continuing  right,  and 
after  it  has  been  once  exercised  by  the  adoption  of  a  charter, 
the  municipality  cannot  adopt  another  charter,  but  must  amend 
the  one  already  adopted.  (Blanchard  v.  Ilartwell,  131  Cal. 
263,  63  Pac.  319.) 

The  legislature  cannot  abridge  the  right  given  by  this  sec- 
tion to  cities  to  adopt  charters.  (People  v.  Bagley,  85  Cal.  343. 
24  Pac.  716.) 

A  charter  is  a  "statute"  within  the  meaning  of  section  1622 
of  the  Civil  Code.  It  is  also  a  "law,"  and  also  written  law. 
(Frick  V.  Los  Angeles,  115  Cal.  512,  47  Pac.  250.) 

The  authority  to  adopt  a  charter  is  a  part  of  the  law-making 
power  of  the  state.  (Sheehan  v.  Scott,  145  Cal.  684,  79  Pac. 
350.) 

A  charter  must  be  consistent  with  the  constitution  and  gen- 
eral laws  of  the  state.  But  the  whole  charter  will  not  be 
held  invalid  because  a  few  of  its  provisions  may  be  inconsistent 
with  general  statutes  in  force  at  the  time  of  its  adoption. 
(Brooks  V.  Fischer,  79  Cal.  173,  21  Pac.  652,  4  L.  R.  A.  429.) 

A  charter  unlawfully  attempting  to  give  a  police  court  ex- 
clusive jurisdiction  of  certain  mibdemeanors    is  not  inconsist- 


Art.  XI,  §  8         CONSTITUTION  OP  1879.  356 

ent  with  the  general  law  giving  such  jurisdiction  to  justices' 
courts.     (Ex  parte  Dolan,  128  Cal.  460,  60  Pac.  1094.) 

A  city  may  provide  in  its  charter  for  taxation  for  municipal 
purposes.  (Security  Sav.  etc.  Co.  v.  Ilinton,  97  Cal.  214,  32 
Pac.  3.) 

The  charter  cannot  extend  its  authority  outside  of  the  terri- 
tory of  the  city.  (Kennedy  v.  Miller,  97  Cal.  429,  437,  32 
Pac.  558.) 

A  reference  in  a  special  charter  of  a  city  to  a  particular 
title  of  the  Political  Code  for  its  powers  and  provisions  has 
the  effect  to  make  the  appropriate  title  a  part  of  the  charter 
of  the  city.  (Ex  i^arte  Lemon,  143  Cal.  558,  77  Pac.  455,  65 
h.  R.  A.  946.) 

The  provisions  of  the  Political  Code  as  to  the  formation  of 
the  legislative  body  of  municipalities  is  not  such  a  general 
law  that  a  charter  must  be  consistent  with  it.  (In  re  Pfahler, 
150  Cal.   71,  88  Pac.  270,  11  Ann.  Cas.  911.) 

There  is  no  limitation  in  the  constitution  on  the  right  to 
include  in  a  freeholders'  charter  power  to  acquire,  own  and 
operate  public  utilities.  (Piatt  v.  City  and  County,  158  Cal. 
74,  110  Pac.  304.) 

Freeholders. — The  board  of  election  commissioners  of  San 
Francisco  have  power  to  call  an  election  of  freeholders  under 
this  section.     (People  v.  Hoge,  55   Cal.  612.) 

The  action  of  the  board  of  election  commissioners  in  order- 
ing an  election  of  freeholders  under  this  section  is  not  judicial 
in  its  nature.     (People  v.  Election  Commrs.,  54  Cal.  404.) 

All  that  is  necessary  to  the  validity  of  an  election  of  free- 
holders is  that  they  may  be  chosen  at  a  general  or  special  elec- 
tion; and  where  there  has  been  such  an  election,  the  voice  of  the 
people  is  not  to  be  rejected  for  a  defect  or  even  want  of  notice, 
if  they  have  in  truth  been  called  upon  and  have  spoken. 
(People  v.  Hoge,  55  Cal.  612.) 

As  to  whether  or  not  irregularities  in  the  election  of  free- 
holders can  affect  the  validity  of  the  charter,  see  People  v. 
Gunn,  85   Cal.  238,  24  Pac.   718. 

Where  the  person  receiving  the  highest  number  of  votes  for 
freeholder  is  disqualified,  the  next  highest  person  is  not  en- 
titled to  a  certificate  of  election.  (People  v.  Hecht,  105  Cal. 
621,  45  Am.  St.  Rep.  96,  38  Pac.  941,  27  L.  R.  A.  203.) 


357  CONSTITUTION  OF  1879.         Art.  XI,  §  8 

The  acts  of  de  facto  freeholders  are  valid.  (People  v.  Heeht, 
10.5  Cal.  621,  38  Pac.  941,  27  L.  E.  A.  203.) 

Where  some  of  the  freeholders  elected  are  ineligible,  the 
remainder  of  them  may  frame  the  charter.  A  majority  of 
those  qualified  may  act.  (People  v.  Heeht,  105  Cal.  621,  48 
Am.  St.  Rejx  96,  38  Pac.  941,  27  L.  R.  A.  203.) 

A  person  who  has  not  been  for  at  least  five  years  a  qualified 
elector  of  the  city  is  ineligible  to  the  office  of  freeholder. 
(People  V.  Heeht,  105  Cal.  621,  45  Am.  St.  Eep.  96,  38  Pac. 
941,  27  L.  R.  A.  203.) 

Ratification. — The  duty  of  calling  an  election  to  ratify  a 
charter  is  one  clearly  enjoined  by  law,  and  may  be  enforced 
by  mandamus;  and  it  is  no  defense  that  there  may  not  be 
sufficient  funds  in  the  treasury  to  defray  the  expenses  of  the 
election.     (Gibbs  v.  Bartlett,  63  Cal.  117.) 

A  municipal  charter  must  receive  a  majority  of  all  the  votes 
cast  at  the  election,  and  not  merely  a  majority  of  the  votes 
cast  thereupon.  (Santa  Rosa  v.  Bower,  142  Cal.  299,  75  Pac. 
829.) 

An  election  is  invalid  if  no  duplicate  of  the  proposed  charter 
was  delivered  to  the  mayor  or  recorder,  or  if  held  without 
sufficient  publication  of  notice,  or  in  less  than  the  required 
number  of  days  after  completion  of  the  publication.  (People 
V.  Gunn,  85  Cal.  238,  24  Pac.  718.) 

A  city  charter  may  be  approved  by  a  majority  of  the 
members  elected  to  each  house  of  the  legislature  by  joint  reso- 
lution, without  the  approval  of  the  governor.  (Brooks  v. 
Fischer,  79  Cal.  173,  21  Pac.  652,  4  L.  R.  A.  429.) 

The  legislature  in  approving  a  freeholders'  charter  does  not 
exercise  its  law-making  power.  (People  v.  Toal,  85  Cal.  333, 
24  Pac.  603;  People  v.  Gunn,  85  Cal.  238,  24  Pac.  718.) 

The  legislature  in  approving  a  freeholders'  charter  cannot 
conclusively  determine  whether  or  not  the  municipal  author- 
ities and  people  of  the  city  have  proceeded  regularly  in  its 
framing  and  adoption.  (People  v.  Gunn,  85  Cal.  238,  24  Pac. 
718.) 

Effect. — A  new  charter  supersedes  the  old  and  all  amend- 
ments thereto.     (People  v.  Oakland,  92  Cal.  611,  28  Pac.  807.) 

A  description  of  the  territory  of  a  municipal  corporation  is 
an  essential  part  of  the  charter,  and  is  superseded  by  an 
entirely  new  charter  containing  a  different  description  of  ter- 


Art.  XI,  §  8         CONSTITUTION  OP  1879.  358 

ritory  from  that  container!  in  the  original  charter.  (People  v. 
Oakland,  92  Cal.  611,  28  Pac.  807.) 

Tlie  adoption  of  a  new  charter  operates,  not  ex  proprio  vigore, 
but  by  virtue  of  the  provisions  of  the  constitution,  to  super- 
sede the  existing  charter  and  all  amendments  thereto,  and 
although  such  charter  cannot  establish  a  police  court,  it  will 
abolish  one  established  by  the  former  charter.  (Ex  parte 
Sparks,  120  Cal.  395,  52  Pac.  715.) 

A  new  charter  supersedes  the  provision  of  aB  existing  char- 
ter establishing  a  justice's  court.  (Miner  r.  Justice's  Court, 
121  Cal.  204,  53  Pac.  795.) 

While  the  charter  of  the  city  of  Eureka  superseded  the  pro- 
visions of  the  former  charter  creating  the  office  of  harbor- 
master, without  making  any  provision  for  such  officer,  it  did 
not  supersede  the  provisions  of  the  Political  Code  providing 
for  the  duties  of  such  harbormaster.  (Quigg  v.  Evans,  121  Cal. 
54G,  53  Pac.  1093.) 

The  charter  is  the  organic  law  of  the  city  and  supersedes  all 
laws  inconsistent  therewith.  (Dinan  v.  Superior  Court,  6  Cal. 
App.   217,  91   Pac.   806.) 

The  charter  of  San  Francisco,  when  approved  by  the  legis- 
lature, became  the  organic  law  of  the  city  and  county,  and 
superseded  the  existing  charter  and  all  laws  inconsistent  there- 
with, and  thereafter  the  city  and  county  was  no  longer  subject 
to  or  controlled  by  general  laws.  (Burke  v.  Board  of  Trustees, 
4  Cal.  App.  235,  87   Pac.  421.) 

Validity. — The  municipality,  real  or  pretended,  is  a  neces- 
sary party  to  a  proceeding  to  test  the  validity  of  a  municipal 
charter.     (People  v.  Gunn,  85  Cal.  238,  24  Pac.  718.) 

Amendments. — After  the  adoption  of  a  freeholders'  charter 
a  second  board  of  freeholders  cannot  be  elected  to  frame  a 
second  charter  for  the  city  to  be  adopted  by  a  majority  vote, 
but  the  first  charter  must  be  amended.  (Blanchard  v.  Hart- 
well,  131  Cal.  263,  63  Pac.  349.) 

The  provisions  of  the  constitution  in  regard  to  the  adoption 
and  amendment  of  freeholders'  charters  are  mandatory  and 
prohibitory;  and  the  mode  of  amendment  of  such  charters  ia 
exclusively  commanded,  and  all  others  are  prohibited.  (Blanch- 
ard v.  Hartwell,  131  Cal.  263,  63  Pac.  349.) 

The  amendment  mentioned  in  this  section  relates  only  to 
amendments  made  by  and  at  the  instance   of  the   officers  and 


359  CONSTITUTION  OF  1879.  Art.  XI,  §  8 

electors  of  the  city,  and  rloes  not  inhibit  the  amendment  or 
change  of  the  charter  within  two  years  under  general  laws. 
(People  V.  Coronado,  100  Cal.  571,  35  Pac.  162.) 

The  annexation  of  additional  territory  to  the  city  does  not 
work  an  amendment  to  the  charter.  (People  v.  Oakland,  123 
Cal.  598,  56  Pac.  445.) 

The  mayor  of  the  city  and  county  of  San  Francisco  is  not 
included  in  the  term  "legislative  authority  of  the  city,"  and  a 
proposed  amendment  need  not  be  approved  by  him.  (Harrison 
V.  Eoberts,  145   Cal.   173,   78  Pac.  537.) 

The  use  of  the  words  legislative  authority  was  not  intended 
to  define  the  powers  of  that  body  or  place  it  in  a  position  where 
it  would  be  beyond  restriction  by  the  organic  law  of  the  city. 
(In  re  Pfahler,   150  Cal.  71,  88  Pac.  270,  11  Ann.  Cas.  911.) 

The  interval  of  two  years  refers  to  the  time  which  must 
elapse  between  the  elections  at  which  the  amendments  are 
ratified  and  not  to  the  action  of  the  legislative  authority  of 
the  city  or  the  approval  by  the  legislature.  (Harrison  v.  Eob- 
erts, 145  Cal.  173,  78  Pac.  537.) 

Where  amendments  are  petitioned  for  by  fifteen  per  cent 
of  the  voters,  the  legislative  authority  of  city  has  discretion 
either  to  call  a  special  election  or  to  wait  until  the  next  gen- 
eral election  to  submit  them  to  the  people.  (Lubliner  v.  Alpers, 
145  Cal.  291,  78  Pac.  722.) 

A  provision  in  a  freeholder's  charter  fixing  the  salaries  of 
oflScers  and  providing  that  "the  common  council  in  the  month 
of  January,  1891,  and  every  four  years  thereafter  shall  readjust 
and  fix  anew  the  amount  of  all  official  salaries  provided  for 
in  this  charter,"  is  not  an  amendment  to  the  charter.  (Coyne 
V.  Rennie,  97   Cal.  590,  32  Pac.  578.) 

In  Harrison  v.  Roberts,  145  Cal.  173,  78  Pac.  537,  it  was 
held  that  the  limitation  of  two  years  referred  to  the  time  of 
the  adoption  of  the  amendment  by  the  electors,  and  not  to  the 
time  of  the  proposal  thereof  or  the  ratification  thereof  by  the 
legislature.  In  doing  so  the  court  said:  "The  only  effect  of 
the  limitation  as  to  time  is  to  prohibit  a  submission  for  rati- 
fication by  the  electors  of  any  proposed  amendment  within  two 
years  from  the  submission  for  ratification  of  any  })rior  amend- 
ment; in  other  words,  that  proposals  for  amendments  may  be 
submitted  at  elections,  only  at  intervals  of  two  years."  In 
Migliavacca  v.  Napa,   10  Cal.  App.  383,  102   Pac.   227,  it  was 


Art.  XI,  §  81/2      CONSTITUTION  OF  1879.  360 

held  that  this  language  could  not  be  construed  to  mean  that 
if  the  amendments  were  rejected  at  the  first  election  other 
amendments   could  not  be  submitted  within   two  years. 

Amendments  may  be  submitted  in  less  than  two  years  after 
the  rejection  of  other  amendments.  (Migliavacca  v.  Napa,  10 
Cal.  App.  383,  102  Pac.  227.) 

The  "special  election"  provided  for  by  this  section  is  an 
election  held  for  the  special  purpose  of  voting  upon  the  amend- 
ments to  the  charter.  (People  v.  Davie,  114  Cal.  363,  46  Pac. 
150.) 

On*^  resolution  approving  thirteen  separate  amendments  to  a 
city  charter  is  sufficient.  (In  re  Pfahler,  150  Cal.  71,  88  Pac. 
270,   11   Ann.   Cas.   911.) 

When  charter  takes  effect. — "When  a  newly  adopted  charter 
expressly  provided  for  a  preliminary  election  under  it  on  a 
date  prior  to  the  date  at  which  the  charter  is  to  take  effect, 
the  charter  is  to  be  construed  as  consistent  with  itself,  and 
the  general  provision  as  to  its  taking  effect  merely  means  that 
the  machinery  of  the  new  government  shall  not  start  until 
the  later  date  and  does  not  conflict  with  the  provision  for  a 
preliminary  election.  (Trafton  v.  Quinn,  143  Cal.  469,  77  Pac. 
164.) 

City  and  county  charters,  to  contain  what. 

Sec.  8^4.  It  shall  be  competent,  in  all  charters 
framed  under  the  authority  given  by  section  eight  of 
article  eleven  of  this  constitution,  to  provide,  in  addi- 
tion to  those  provisions  allowable  by  this  constitution 
and  by  the  laws  of  the  state,  as  follows : 

1.  For  the  constitution,  regulation,  government,  and 
jurisdiction  of  police  courts,  and  for  the  manner  in 
which,  the  times  at  which,  and  the  terms  for  which  the 
judges  of  such  courts  shall  be  elected  or  appointed, 
and  for  the  qualifications  and  compensation  of  said 
judges  and  of  their  clerks  and  attaches. 


3G1  CONSTITUTION  OP  1879.      Art.  XI,  §  81/2 

2.  For  the  manner  in  which,  the  times  at  which,  and 
the  terms  for  which  the  members  of  boards  of  educa- 
tion shall  be  elected  or  appointed,  for  their  qualifica- 
tions, compensation  and  removal,  and  for  the  number 
which  shall  constitute  any  one  of  such  boards. 

3.  For  the  manner  in  which,  the  times  at  which,  and 
the  terms  for  which  the  members  of  the  boards  of  police 
commissioners  shall  be  elected  or  appointed;  and  for 
the  constitution,  regulation,  compensation,  and  govern- 
ment of  such  boards  and  of  the  municipal  police  force. 

4.  For  the  manner  in  which  and  the  times  at  which 
any  municipal  election  shall  be  held  and  the  result 
thereof  determined;  for  the  manner  in  which,  the  times 
at  which,  and  the  terms  for  which  the  members  of  all 
boards  of  election  shall  be  elected  or  appointed,  and 
for  the  constitution,  regulation,  compensation  and  gov- 
ernment of  such  boards,  and  of  their  clerks  and  at- 
taches; and  for  all  expenses  incident  to  the  holding  of 
any  election. 

Where  a  city  and  county  government  has  been 
merged  and  consolidated  into  one  municipal  govern- 
ment, it  shall  also  be  competent,  in  any  charter  framed 
under  said  section  eight  of  said  article  eleven,  or  by 
amendment  thereto,  to  provide  for  the  manner  in  which, 
the  times  at  which  and  the  terms  for  which  the  several 
county  and  municipal  officers  and  employees  whose  com- 
pensation is  paid  by  such  city  and  county,  excepting 
judges  of  the  superior  court,  shall  be  elected  or  ap- 


Art.  XI,  §  81/2      CONSTITUTION  OF  1879.  362 

pointed,  and  for  their  recall  and  removal,  and  for  their 
compensation,  and  for  the  number  of  deputies,  clerks 
and  other  employees  that  each  shall  have,  and  for  the 
compensation,  method  of  appointment,  qualifications, 
tenure  of  office  and  removal  of  such  deputies,  clerks 
and  other  employees.  All  provisions  of  any  charter 
of  any  such  consolidated  city  and  county  heretofore 
adopted,  and  amendments  thereto,  which  are  in  accord- 
ance herewith,  are  hereby  confirmed  and  declared  valid. 
(Amendment  approved  October  10,  1911.) 

[AMENDMENT  OF  1896.] 
Sec.  8*/^.  It  shall  be  competent,  in  all  charters  framed  un- 
der the  authority  given  by  section  eight  of  article  eleven  of 
this  constitution,  to  provide,  in  addition  to  those  provisions 
allowable  by  this  constitution  and  by  the  laws  of  the  state, 
as  follows: 

1.  For  the  constitution,  regulation,  government,  and  juris- 
diction of  police  courts,  and  for  the  manner  in  which,  the 
times  at  which,  and  the  terms  for  which  the  judges  of  such 
courts  shall  be  elected  or  appointed,  and  for  the  compensation 
of  said  judges  and  of  their  clerks  and  attaches. 

2.  For  the  manner  in  which,  the  times  at  which,  and  the 
terms  for  which  the  members  of  boards  of  education  shall  be 
elected  or  appointed,  and  the  number  which  shall  constitute 
any  one  of  such  boards, 

3.  For  the  manner  in  which,  the  times  at  which,  and  the 
terms  for  which  the  members  of  the  boards  of  police  com- 
missioners shall  be  elected  or  appointed;  and  for  the  constitu- 
tion, regulation,  compensation,  and  government  of  such  boards 
and  of  the  municipal  police  force. 


363  CONSTITUTION  OF  1879.      Art.  XI,  §  Si/o 

4.  For  the  manner  in  which,  the  times  at  which,  and  the 
terms  for  which  the  members  of  all  boards  of  election  shall 
be  elected  or  appointed,  and  for  the  constitution,  regulation, 
compensation,  and  government  of  such  boards,  and  of  their 
clerks  and  attaches;  and  for  all  expenses  incident  to  the  hold- 
ing of  any  election. 

Where  a  city  and  county  government  has  been  merged  and 
consolidated  into  one  municipal  government,  it  shall  also  be 
competent  in  any  charter  framed  under  said  section  eight  of 
said  article  eleven,  to  provide  for  the  manner  in  which,  the 
times  at  which,  and  the  terms  for  which  the  several  county 
officers  shall  be  elected  or  appointed,  for  their  compensation, 
and  for  the  number  of  deputies  that  each  shall  have,  and  for 
the  compensation  payable  to  each  of  such  deputies.  (Amend- 
ment adopted  November  3,  1896.) 

PROVISIONS  OF  CHARTER.— This  section  is  not  retroac- 
tive, and  has  no  application  to  charters  previously  adopted. 
(Ex  parte  Sparks,  120  Cal.  395,  52  Pac.  715.) 

This  section  does  not  revive  or  validate  a  provision  in  the 
charter  of  a  municipality,  adopted  and  ratified  before  the  con- 
stitution was  amended,  providing  for  the  establishment  of  a 
police  court.     (Fleming  v.  Hance,  153  Cal.  1G2,  94  Pac.  620.) 

As  to  such  matters  as  this  section  authorizes  to  be  provided 
for  in  freeholders'  charters,  the  provisions  of  the  charter  are 
supreme.     (Graham  v.  Fresno,  151  Cal.  465,  91  Pac.  147.) 

Where  the  charter  of  a  consolidated  city  and  county  govern- 
ment is  silent  as  to  the  election  or  appointment  of  special  offi- 
cers or  their  compensation,  the  general  law  prevails.  (NichoU 
V.  Koster,  157  Cal.  416,  108  Pac.  302.) 

Under  this  provision  the  freeholders'  charter  of  San  Fran- 
cisco properly  fixed  the  manner  in  which,  the  times  at  which, 
and  the  terms  for  which  the  several  county  officers  shall  be 
elected  or  appointed.  (Martin  v.  Election  Commrs.,  126  Cal. 
404,  58  Pac.  932.) 

Under  this  section  the  charter  cannot  vest  exclusive  jurisdic- 
tion of  certain  misdemeanors  in  the  police  court,  and  thus  oust 


Art.  XI,  §  8l^      CONSTITUTION  OF  1879.  364 

the  justices'  courts  of  such  jurisdiction.  (Ex  parte  Dolan,  128 
Cal.  460,  60  Pac.  1094.) 

Under  this  provision  it  is  competent  for  the  charter  of  a  city 
and  county  to  provide  that  the  salary  of  the  assessor  shall  be 
in  full  compensation  for  his  services,  although  the  general  law 
allowed  him  extra  compensation  for  collecting  poll  taxes. 
(Matter  of  Dodge,  133  Cal.  512,  67  Pac.  973.) 

As  to  the  meaning  of  the  word  "deputies"  as  used  in  this 
section,  see  Garnett  v.  Brooks,  136  Cal.  585,  69  Pac.  298. 

This  section  confers  no  power  upon  the  municipality  to  pre- 
scribe by  a  freeholders'  charter  the  qualifications  of  the  depu- 
ties mentioned  in  this  section.  (Crowley  v.  Freud,  132  Cal. 
440,  64  Pac.  696.) 

A  provision  of  a  freeholders'  charter  that  officers  of  the  city 
and  county  must  have  been  electors  of  the  city  and  county  for 
at  least  five  years  before  their  election  is  valid.  (Sheehan  v. 
Scott,  145  Cal.  684,  79  Pac.  350.) 

Stenographers  of  the  police  court  are  "attaches"  of  the  court 
within  the  meaning  of  this  section.  (Elder  v.  McDougald,  145 
Cal.  740,  79  Pac.  429.) 

This  section  does  not  authorize  the  charter  to  confer  on  the 
police  court  concurrent  jurisdiction  with  the  superior  courts  of 
misdemeanors.  (Robert  v.  Police  Court,  148  Cal.  131,  82  Pac. 
838.) 

The  power  given  by  the  charter  to  the  police  judges  to  ap- 
point stenographers  and  fixing  their  compensation  supersedes 
the  provisions  of  the  Penal  Code  on  the  subject.  (Elder  v. 
McDougald,  145  Cal.  740,  79  Pac.  429.) 

The  power  conferred  by  this  section  includes  the  power  to 
provide  for  the  attaches  not  only  of  the  police  court,  but  also 
of  the  police  judge  when  acting  as  a  committing  magistrate, 
and  whether  acting  under  the  charter  or  under  the  general  law. 
(Elder  v.  McDougald,  145  Cal.  740,  79  Pac.  429.) 

The  mere  fact  that  this  section  only  refers  to  "police  courts" 
does  not  prevent  the  city  from  conferring  the  same  jurisdiction 
upon  a  "recorder."     (In  re  Baxter,  3  Cal.  App.  716,  86  Pac.  998.) 

This  provision  has  no  application  to  justices'  courts.  (In  re 
Johnson,  6  Cal.  App.  734,  93  Pac.  199.) 

Since  the  adoption  of  this  section  the  legislature  has  no 
power  to  establish  a  police  court  in  a  city  maintaining  a  police 


365  CONSTITUTION  OF  1879.        Art.  XI,  §  8a 

court  under  its  charter.  (Graham  v.  Fresno,  151  Cal.  465,  91 
Pac.  147.) 

The  term  "police  court"  probably  includes  such  inferior  courts 
as  may  properly  be  held  to  be  purely  municipal,  though  given 
by  the  state  certain  jurisdiction  in  state  as  distinguished  from 
municipal  matters.  (Graham  v.  Fresno,  151  Gal.  4G5,  91  Pac. 
147.) 

The  term  "police  court"  ordinarily  refers  to  an  inferior 
municipal  court  with  a  limited  jurisdiction  in  criminal  cases 
only,  with  the  power  to  try  certain  misdemeanor  cases  arising 
from  the  violation  of  state  law  or  municipal  ordinance,  and  to 
conduct  preliminary  examination  in  cases  of  felony  and  certain 
misdemeanors,  and  does  not  include  justices'  courts.  (Graham 
V.  Fresno,  151  Cal.  465,  91  Pac.  147.) 

This  section  has  no  application  to  justices  of  the  peace  and 
did  not  restrict  the  power  of  the  legislature  to  provide  for  jus- 
tices' courts  in  cities  and  towns.  (Graham  v.  Fresno,  151  Cal. 
465,  91  Pac.  147.) 

Panama-Pacific  International  Exposition. 

Sec.  8a.  The  charter  of  the  city  and  county  of  San 
Francisco  may  be  amended,  in  addition  to  the  method 
and  the  times  provided  in  section  8  of  article  XI  of  the 
constitution,  in  the  following  particulars : 

(a)  Authorizing  the  city  and  county  of  San  Fran- 
cisco, a  municipal  corporation,  by  its  legislative  author- 
ity, to  incur  a  bonded  indebtedness  in  an  amount  not 
exceeding  five  million  dollars,  and  to  issue  municipal 
bonds  therefor,  and  to  grant  and  turn  over  to  the 
Panama-Pacific  International  Exposition  Company  (a 
corporation  organized  under  the  laws  of  the  state  of 
California  March  22,  1910)  the  proceeds  of  said  bonds, 
the  same  to  be  used  and  disbursed  by  said  exposition 
company  for  the  purposes  of  an  exposition  to  be  held  in 


Art.  XI,  §  8a       constitution  op  1879.  3G6 

the  city  and  county  of  San  Francisco  to  celebrate  the 
completion  of  the  Panama  canal;  said  bonds,  so  issued, 
to  be  of  such  form  and  to  be  redeemable,  registered  and 
converted  in  such  manner  and  amounts,  and  at  such 
times  not  later  than  forty  years  from  the  date  of  their 
issue,  as  such  legislative  authority  shall  determine;  the 
interest  on  said  bonds  to  not  exceed  five  per  centum  per 
annum,  and  said  bonds  to  be  exempt  from  all  taxes  for 
state  and  municipal  purposes,  and  to  be  sold  for  not  less 
than  par  at  such  times  and  places,  and  in  such  manner, 
as  shall  be  determined  by  said  legislative  authority ;  the 
proceeds  of  said  bonds,  when  sold,  to  be  payable  imme- 
diately by  the  treasurer  of  said  city  and  county  to  the 
treasurer  of  said  Panama-Pacific  International  Exposi- 
tion Company,  upon  the  demand  of  said  treasurer  of 
said  exposition  company,  without  the  necessity  of  the 
approval  of  such  demand  by  other  authority,  the  same 
to  be  used  and  disbursed  by  said  Panama-Pacific  Inter- 
national Exposition  Company  for  the  purposes  of  such 
exposition,  under  the  direction  and  control  of  such  expo- 
sition company; 

(b)  Providing  that  any  bonded  indebtedness  in- 
curred for  the  purposes  aforesaid  shall  be  exclusive  of 
the  bonded  indebtedness  of  the  said  city  and  county 
limited  by  section  9  of  article  XII  of  said  charter. 

(c)  Granting  to  said  Panama-Pacific  International 
Exposition  Company  the  exclusive  possession  and  use, 
together  with  the  management  and  control,  of  that  por- 


367  CONSTITUTION  OF  1879.       Art.  XI,  §  8a 

tion  of  Golden  Gate  Park  in  the  city  and  county  of  San 
Francisco  westerly  from  Twentieth  avenue,  as  extended, 
for  such  exposition  purposes,  such  possession  and  use, 
also  management  and  control,  to  terminate  not  later 
than  one  year  after  the  closing  of  such  exposition ; 

(d)  Granting  to  said  Panama-Pacific  International 
Exposition  Company  the  exclusive  possession  and  use, 
together  with  the  management  and  control,  for  such  ex- 
position purposes,  of  any  lands  held  by  the  board  of 
education  of  the  city  and  county  of  San  Francisco,  and 
by  the  city  and  county  of  San  Francisco,  not  in  actual 
use,  such  possession  and  use,  also  management  and  con- 
trol, to  terminate  not  later  than  one  year  after  the  clos- 
ing of  such  exposition. 

(e)  Authorizing  said  Panama-Pacific  International 
Exposition  Company  to  temporarily  close  streets  in  the 
city  and  county  of  San  Francisco  westerly  from  Twen- 
tieth avenue,  for  such  exposition  purposes,  and  to  have 
the  exclusive  possession  and  use,  together  with  the  man- 
agement and  control,  of  said  streets  for  such  exposition 
purposes,  such  possession  and  use,  also  management  and 
control  of  said  streets,  to  terminate  not  later  than  one 
year  after  the  closing  of  such  exposition. 

Proposals  to  amend  the  charter  of  the  city  and  county 
of  San  Francisco  in  the  foregoing  particulars  may  be 
submitted  by  the  legislative  authority  of  said  city  and 
county  to  the  electors  of  said  city  and  county,  at  any 
general  or  special  election   (and  a  special  election  may 


Art.  XI,  §  8a        constitution  of  1879.  368 

be  called  therefor)  held  in  said  city  and  county,  after 
the  publication  of  such  proposals  in  a  newspaper  of  gen- 
eral circulation  in  said  city  and  county,  for  such  time 
as  shall  be  determined  by  such  legislative  authority. 
Upon  the  ratification  of  any  such  proposed  amendment 
by  a  majority  of  the  electors  of  said  city  and  county 
voting  at  such  election  on  such  proposed  amendment, 
said  proposed  amendment  receiving  such  majority  vote 
shall  become  operative  immediately  as  an  amendment  to 
said  charter,  without  the  necessity  of  approval  thereof 
by  the  legislature. 

Any  act  of  the  legislative  authority  of  the  city  and 
county  of  San  Francisco,  in  submitting  to  the  electors 
of  said  city  and  county,  at  any  general  or  special  elec- 
tion, proposals  to  amend  the  charter  of  said  city  and 
county  in  the  foregoing  particulars,  including  any  no- 
tice by  publication  or  otherwise  of  such  proposals,  and 
of  such  election,  and  the  holding  of  such  election,  in  ac- 
cordance with  the  provisions  hereof,  before  the  adoption 
of  this  amendment,  are  hereby  validated  in  all  respects 
as  if  performed  subsequent  to  the  adoption  of  this 
amendment.  The  disbursement  of  all  funds  obtained 
from  said  bonds  shall  be  accounted  for  by  said  Panama- 
Pacific  International  Exposition  Company  by  an  item- 
ized statement  thereof  to  be  filed  with  the  auditor  of  the 
city  and  county  of  San  Francisco.  (New  section  added 
by  amendment  adopted  November  8,  1910.) 


369  CONSTITUTION  OP  1879.         Art.  XI,  §  9 

Compensation  of  oflBcers. 

See.  9.  The  compensation  of  any  county,  city, 
town,  or  municipal  officer  shall  not  be  increased  after 
his  election  or  during  his  term  of  office ;  nor  shall  the 
term  of  any  such  officer  be  extended  beyond  the  period 
for  which  he  is  elected  or  appointed. 

COMPENSATION  OF  OFFICERS.— The  provision  against 
altering  the  compensation  of  an  officer  during  his  term  applies 
to  those  officers  elected  at  the  first  election  after  the  adoption 
of  the  constitution,  whose  salaries  were  fixed  by  previous  laws. 
(Gross  V.  Kenfield,  57  Cal.  626.) 

This  section  does  not  apply  to  incidental  expen.ses  of  the 
office,  but  only  to  the  compensation  for  services.  (Kirkwood  v. 
Soto,  87  Cal.  394,  25  Pac.  488.) 

Where  a  County  Government  Act  increases  the  salaries  of 
certain  officers  and  provides  that  it  "shall  not  affect  the  present 
incumbents,"  such  increase  does  not  accrue  to  a  person  ap- 
pointed to  fill  a  vacancy  in  an  unexpired  term  of  such  incum- 
bent.    (Larew  v.  Newman,  81  Cal.  588,  23  Pac.  227.) 

An  order  of  the  board  of  supervisors  allowing  a  county  clerk 
a  deputy  at  a  salary  of  fifty  dollars  a  month,  to  be  paid  by  the 
county,  made  after  the  election  of  the  county  clerk,  is  in  con- 
flict with  this  provision.  (Dougherty  v.  Austin,  94  Cal.  601,  28 
Pac.  834,  29  Pac.  1092,  16  L.  K.  A.  161.) 

An  ordinance  of  a  board  of  supervisors  diminishing  the  com- 
pensation of  constables  during  their  term  is  not  in  conflict  with 
this  provision.     (People  v.  Johnson,  95  Cal.  471,  31   Pac.  611.) 

Under  the  provisions  of  the  County  Government  Act  provid- 
ing that  the  salaries  provided  for  therein  shall  be  in  full  com- 
pensation for  all  services  rendered  by  the  officers,  the  clerk  of 
the  board  of  supervisors  is  not  entitled  to  receive  any  extra 
compensation  for  extra  work  done  by  him  in  preparing  data  for 
a  claim  of  the  county  against  the  state,  whether  rendered  in 
the  line  of  his  official  duty  or  otherwise.  (Humboldt  v.  Stern, 
136  Cal.  63,  68  Pac.  324.) 
Constitution — 24 


Art.  XI,  §  9         CONSTITUTION  OF  1879.  370 

This  section  only  applies  to  a  "county,  city,  town,  or  munici- 
pal oflicer,"  for  whose  term  of  office  the  constitution  makes  no 
provision,  and  does  not  apply  to  superior  judges.  (People  v. 
Campbell,  138  Cal.  11,  70  Pac.  918.) 

Where  the  term  is  fixed  by  the  constitution,  the  legislature 
has  no  power  to  extend  or  diminish  it.  (People  v.  Campbell, 
138  Cal.  11,  70  Pac.  918.) 

An  act  relieving  county  officers,  who  were  elected  prior  to  the 
passage  of  the  act,  from  the  payment  of  their  own  assistants,  is 
void.     (Welsh  v.  Bramlet,  98  Cal.  219,  33  Pac.  66.) 

An  act  increasing  the  salary  of  a  policeman  during  his  term 
of  office  is  void.     (Darcy  v.  Mayor,  104  Cal.  642,  38  Pac.  500.) 

A  contract  to  pay  a  city  attorney  extra  compensation  for  ser- 
vices rendered  during  his  term  of  office  is  void;  but  he  might 
recover  for  services  performed  under  such  contract  after  the 
expiration  of  his  term  of  office.  (Buck  v.  Eureka,  109  Cal.  504, 
42  Pac.  243,  30  L.  R.  A.  409.) 

An  act  increasing  the  compensation  of  county  officers  cannot 
constitutionally  increase  the  salaries  of  incumbents.  (Tulare 
Co.  V.  Jefferds,  118  Cal.  303,  50  Pac.  427.) 

This  prohibition  applies  to  a  person  appointed  to  fill  a 
vacancy  caused  by  the  death  of  the  incumbent,  after  the  pas- 
sage of  the  law  increasing  the  salary  of  the  officer.  (Storke 
V.  Goux,  129  Cal.  526,  62  Pac.  68.) 

The  legislature  may  change  the  form  of  compensation  from 
fees  to  a  salary,  provided  the  compensation  is  not  increased. 
(McCauley  v.  Culbert,  144  Cal.  276,  77  Pac.  923.) 

For  the  board  of  supervisors  to  allow  the  district  attorney  a 
salary  for  a  stenographer  not  provided  for  by  the  County  Gov- 
ernment Act  at  the  time  of  his  election  is  a  violation  of  this 
section.     (Humiston  v.  Shaffer,  145  Cal.  195,  78  Pac.  651.) 

Also  to  an  officer  holding  over  after  the  expiration  of  his 
term,  by  failure  of  his  successor  to  qualify.  (Rice  v.  National 
City,  132  Cal.  354,  64  Pac.  580.) 

This  provision  was  intended  as  well  to  avoid  and  prevent  the 
abuses  which  may  arise  bj'  reason  of  arrangements  between 
candidates  who  are  reasonably  assured  of  election  or  appoint- 
ment and  the  legislative  power,  to  take  effect  after  the  election 
of  such  candidates  regardless  of  the  time  of  the  enactment, 
as  arrangements  made  after  such  election  or  appointment. 
(Woods  V.  Potter,  8  Cal.  App.  41,  95  Pac.  1125.) 


371  CONSTITUTION  OP  1879.        Art.  XI,  §  10 

The  validity  of  a  law  fixing  compensation  is  not  to  be  judged 
by  the  date  of  its  adoption  but  by  the  date  when  it  took  eifect. 
(Woods  V.  Potter,  8  Cal.  App.  41,  95  Pac.  1125.) 

In  the  absence  of  a  provision  in  the  charter  providing  a 
salary  for  members  of  the  city  council,  that  body  has  no  power 
to  provide  such  salary  by  ordinance.  (Woods  v.  Potter,  8  Cal. 
App.  41,  95  Pac.  1125.) 

The  expression  "term  of  ofQce"  applies  only  to  officers  who 
have  a  fixed  and  definite  term,  and  does  not  apply  to  appointive 
officers  who  hold  at  the  pleasure  of  the  appointing  power. 
(Harrold  v.  Barnum,  8  Cal.  App.  21,  96  Pac.  104.) 

An  increase  in  a  separate  aUowaiice  for  expenses  of  an  officer 
serving  under  a  fixed  salary,  or  an  increase  in  the  number  of 
deputies  or  their  compensation,  does  not  violate  this  provision. 
(Newman  v.  Lester,  11  Cal.  App.  577,  105  Pac.   785.) 

The  prohibition  of  this  section  refers  only  to  increase  of  com- 
pensation, and  the  legislature  has  the  power  to  reduce  the  com- 
pensation of  any  county  or  township  officer  during  his  term  of 
office,  or  to  change  the  method  of  compensation,  provided  the 
compensation  is  not  increased.  (Crockett  v.  Matthews,  157  Cal. 
153,  106  Pac.  575.) 

TERM  OF  OFFICE.— An  act  changing  the  time  of  the  elec- 
tion of  certain  officers  so  that  no  election  will  be  held  until 
after  the  expiration  of  the  terms  of  the  present  incumbents  is 
not  violative  of  this  section,  although  they  are  entitled  to  hold 
until  their  successors  are  appointed.  (Treadwell  v.  Yolo  Co., 
62  Cal.  563.) 

State  taxes,  no  release  or  discharge  from. 

Sec.  10.  This  section  was  repealed  by  amendment 
adopted  November  8,  1910.  This  amendment  was  part 
of  the  same  amendment  by  which  section  14  of  this 
article  was  added.     The  section  repealed  was  as  follows : 

Sec.  10.  No  county,  city,  town,  or  other  public  or  municipal 
corporation,  nor  the  inhabitants  thereof,  nor  the  property  therein, 
shall  be  released  or  discharged  from  its  or  their  proportionate  share 


Art.  XI,  §  11         CONSTITUTION  OF  1879.  372 

of  taxes  to  be  levied  for  state  purposes,  nor  shall  commutation  for 
such  taxes  be  authorized  in  any  form  whatsoever. 

RELEASE  OF  INDEBTEDNESS. — This  section  was  not  in- 
tended to  embrace  a  release  of  doubtful  claims  which  the  state 
may  hold  against  a  corporation.  (Burr  v.  Carbondale,  76  111. 
455.) 

Local  police,  sanitary,  and  other  regulations  may  be 
enforced. 

Sec.  11.  Any  county,  city,  town,  or  township  may 
make  and  enforce  within  its  limits  all  such  local,  police, 
sanitary,  and  other  regulations  as  are  not  in  conflict 
with  general  laws. 

NATUBE  OF  GRANT  OF  POWER.— The  grant  is  to  the  body 
politic  and  not  to  the  city  council,  and  may  be  exercised  by  the 
electors  directly  by  the  initiative  and  referendum.  (In  re 
Pfahler,  150  Cal.  71,  88  Pac.  270,  11  Ann.  Cas.  911.) 

This  section  contains  a  direct  grant  of  power.  (Denton  v. 
Vann,  8  Cal.  App.  677,  97  Pac.  675.) 

The  legislature  cannot  limit  the  power  conferred  by  this  sec- 
tion so  long  as  it  does  not  conflict  with  any  general  law  of  the 
state.     (In  re  Ackerman,  6  Cal.  App.  5,  91  Pac.  429.) 

This  grant  must  be  construed  to  mean  counties  in  their  organ- 
ized condition  as  bodies  politic,  and  is  an  authorization  by  the 
constitution  to  the  local  legislative  body  as  the  representative 
of  the  county  thus  organized  to  exercise  the  powers  thereby 
granted  in  enacting  local  laws.  (Denton  v.  Vann,  8  Cal.  App. 
677,  97  Pac.  675.) 

LOCAL,  POLICE  AND  SANITARY  LAWS.— The  police 
power  is  subordinate  to  the  power  of  the  federal  government  to 
regulate  commerce.     (Lin  Sing  v.  Washburn,  20  Cal.  534.) 

The  "other  regulations"  mentioned  in  this  section  must  be  lim- 
ited to  objects  similar  to  those  denominated  police  and  sanitary. 
(Ex  parte  Hodges,  87  Cal.  162,  25  Pac.  277.) 

Any  restriction  of  the  rights  of  individuals  to  pursue  a  lawful 
avocation  must   extend   to   all  individuals   who   might   exercise 


373  CONSTITUTION  OP  1879.       Art.  XI,  §  11 

that  right  within  the  same  district.  (Los  Angeles  v.  Hollywood 
Cem.  Assn.,  124  Cal.  344,  71  Am.  St.  Eep.  75,  57  Pac.  153.) 

Any  practice  or  business  the  tendency  of  which,  as  shown  by 
experience,  is  to  weaken  or  corrupt  the  morals  of  those  who  fol- 
low it  or  to  encourage  idleness,  instead  of  habits  of  industry,  is 
a  legitimate  subject  of  police  regulation.  Gambling  is  such  a. 
practice.     (Ex  parte  Tuttle,  91  Cal.  589,  27  Pac.  933.) 

The  question  as  to  what  measures  are  needful  or  appropriat* 
to  be  taken  in  the  exercise  of  the  police  power  is  primarily  for 
the  legislative  body  to  determine;  and  such  determination  will 
not  be  disturbed  by  the  courts,  unless  the  fundamental  rights 
of  the  citizen  are  assailed.  (Ex  parte  Tuttle,  91  Cal.  589,  27 
Pac.  933.) 

It  is  not  necessary  to  the  exercise  of  the  police  power  in  regu- 
lating a  business  that  it  shall  constitute  a  nuisance  per  se.  (Ex 
parte  Lacey,  108  Cal.  326,  49  Am.  St.  Eep.  93,  41  Pac.  411,  38 
L.  R.  A.  640.) 

The  right  to  regulate  is  not  confined  to  such  interference  with 
the  public  welfare  and  comfort  as  comes  strictly  within  the 
common-law  definition  of  nuisance.  (In  re  Junqua,  10  Cal.  App. 
602,  103  Pac.  159.) 

The  legislative  determination  of  what  is  a  proper  exercise  of 
police  powers  is  not  final  but  is  subject  to  supervision  by  the 
courts,  which  will  interfere  when  the  case  is  made  plain,  either 
upon  the  face  of  the  measure  or  by  extraneous  evidence,  that 
needless  oppression  is  worked  or  that  constitutional  rights  are 
invaded,  or  when  the  local  ordinance  is  unreasonable  and  oppres- 
sive.    (In  re  Junqua,  10  Cal.  Apn.  602,  103  Pac.  159.) 

Police  power  is  limited  to  such  measures  as  are  reasonable  in 
their  application  and  which  tend  in  some  appreciable  degree  to 
promote,  protect,  or  preserve  the  public  health,  morals,  or  safety, 
or  the  general  welfare.  (Ex  parte  Quarg,  149  Cal.  79,  117  Am. 
St.  Rep.  115,  84  Pac.  766,  5  L.  R.  A.,  N.  S.',  183,  9  Ann.  Cas.  747.) 

The  bus^iness  of  conducting  a  laundry  is  not  unlawful,  and 
cannot  bo  made  to  depend  upon  the  will  of  any  number  of  citi- 
zens or  property  owners,  (Ex  parte  Sing  Lee,  96  Cal.  354,  31 
Am.  St.  Rep.  218,  31  Pac.  245,  24  L.  R.  A.  195.) 

Police  power  is  exercised  in  the  enforcement  of  a  penalty 
prescribed  for  a  noncompliance  with  law.  (Merced  County  v. 
H&im,  102  Cal.  159,  36  Pac.  399.) 


Art.  XI,  §  1]        CONSTITUTION  OF  1879.  374 

The  legislature  may  delegate  to  boards  of  supervisors  of  coun- 
ties power  to  pass  local,  police,  and  sanitary  regulations.  (Ex 
parte  Sbrader,  33  Cal.  279.) 

This  provision  does  not  authorize  cities  to  change  their  char- 
ters, or  to  revolutionize  the  city  government  or  abrogate  a  de- 
partment thereof.  (People  v.  Newman,  96  Cal.  605,  31  Pac. 
564.) 

Under  the  charter  the  supervisors  have  power  to  pass  ordi- 
nances placing  such  restrictions  upon  the  use  of  any  property  or 
the  conduct  of  any  business  as  may  be  necessary  for  the  public 
health.  (Laurel  Hill  Cemetery  v.  City  and  County,  152  Cal.  464, 
93  Pac.  70,  14  Ann.  Cas.  1080.) 

This  section  includes  the  power  to  amend  an  existing  ordi- 
nance upon  the  same  subject.  (Foster  v.  Police  Commrs.,  102 
Cal.  483,  41  Am.  St.  Rep.  194,  37  Pac.  763.) 

So  far  as  mere  police  regulations  are  concerned,  if  city  and 
county  ordinances  conflict,  the  police  regulations  made  by  the 
city  will  control  within  the  limits  of  the  city.  (Ex  parte  Eoach, 
104  Cal.  272,  37  Pac.  1044;  Ex  parte  Mansfield,  106  Cal.  400,  39 
Pac.  775;  Los  Angeles  v.  Eikenberry,  131  Cal.  461,  63  Pac.  766; 
Ex  parte  Pfirrman,  134  Cal.  143,  66  Pac.  205.) 

But  a  county  license  upon  the  sale  of  liquor,  collected  not 
merely  as  a  regulation  but  for  revenue,  may  be  collected  within 
a  city  although  the  city  has  collected  a  license  tax  for  the  same 
business.  (Los  Angeles  v.  Eikenberry,  131  Cal.  461,  63  Pac. 
766.) 

A  city  ordinance  is  not  a  general  law  within  the  meaning  of 
this  section.  (Los  Angeles  v.  Eikenberry,  131  Cal.  461,  63  Pac. 
766.) 

A  sanitary  district  is  not  a  municipal  corporation,  and  has 
none  of  the  powers  granted  by  this  section,  nor  can  the  legisla- 
ture confer  such  powers  upon  it.  (In  re  Werner,  129  Cal.  567, 
62  Pac.  97.) 

Conflict  with  general  laws. — An  act  which  is  violative  of  an 
express  provision  of  the  constitution  cannot  be  upheld  as  a  police 
regulation.  (San  Francisco  v.  Insurance  Co.,  74  Cal.  113,  5  Am. 
St.  Rep.  425,  15  Pac.  380.) 

A  county  ordinance  in  conflict  with  a  valid  general  law  is 
void.  (San  Luis  Obispo  v.  Graves,  84  Cal.  71,  23  Pac.  1032;  Ex 
parte  Keeney,  84  Cal.  304,  24  Pac.  34.) 


375  CONSTITUTION  OF  1879.       Art.  XI,  §  11 

But  this  is  not  true  of  a  conflict  between  a  valid  county  ordi- 
nance and  an  unconstitutional  general  statute.  (San  Luis  Obispo 
V.  Graves,  84  Cal.  71,  23  Pac.  1032.) 

A  provision  of  a  city  ordinance  prohibiting  the  sale  of  spiritu- 
ous liciuors  in  a  city  is  not  in  conflict  with  the  general  law, 
which  shows  a  tendency  simply  to  regulate  the  sale  of  liquors. 
(Ex  parte  Campbell,  74  Cal.  20,  5  Am.  St.  Eep.  418,  15  Pac.  318; 
Ex  parte  Noble,  96  Cal.  362,  31  Pac.  224.) 

An  ordinance  making  it  unlawful  to  visit  a  gambling-house 
is  not  in  conflict  with  a  provision  of  the  general  law  making 
it  unlawful  to  bet  at  such  house.  (Ex  parte  Boswell,  86  Cal. 
232,  24  Pac.  1060.) 

An  ordinance  undertaking  to  punish  precisely  the  same  acts 
which  are  punishable  under  the  general  law  of  the  state  is  to 
be  deemed  in  conflict  with  such  general  law.  (Ex  parte  Stephen, 
114  Cal.  278,  46  Pac.  86;  In  re  Sic,  73  Cal.  142,  14  Pac.  405.) 

The  mere  fact  that  a  certain  provision  of  a  city  ordinance  is 
in  conflict  with  the  general  law  will  not  invalidate  the  entire 
ordinance  if  the  provisions  thereof  are  separable.  (Ex  parte 
Christensen,  85  Cal.  208,  24  Pac.  747.) 

An  ordinance  containing  certain  regulations  as  to  the  burden 
of  proof  and  the  effect  of  certain  acts  as  evidence  is  void.  (Ex 
parte  Christensen,  85  Cal.  208,  24  Pac.  747.) 

A  municipal  ordinance  making  it  a  misdemeanor  to  fail  to 
remove  an  obstruction  of  a  sidewalk  is  not  in  conflict  with  the 
provisions  of  the  general  law  declaring  such  an  obstruction  a 
nuisance  and  punishable  as  such,  since  the  municipality  might 
legalize  a  partial  obstruction  of  a  street.  (Ex  parte  Taylor,  87 
Cal.  91,  25  Pac.  258.) 

When  the  state  law  provides  a  general  and  municipal  scheme 
to  prevent  the  adulteration  and  sale  of  milk  and  dairy  products, 
a  municipal  ordinance  establishing  a  different  standard  of  purity 
is  void.     (In  re  Desanta,  8  Cal.  App.  295,  96  Pac.  1027.) 

An  ordinance  imposing  a  fine  not  less  than  twenty-five  dol- 
lars nor  more  than  five  hundred  dollars,  and  imprisonment  not 
less  than  ten  nor  more  than  one  hundred  days  is  in  conflict  with 
a  general  law  imposing  a  fine  of  not  less  than  twenty-five  dol- 
lars nor  more  than  two  hundred  dollars  and  imprisonment  not 
less  than  ten  nor  more  than  one  hundred  days.  (In  re  Desanta, 
8  Cal.  App.  295,  96  Pac.  1027.) 


Art.  XI,  §  11       CONSTITUTION  OF  1879.  376 

An  ordinance  in  direct  conflict  with  a  subsequently  enacted 
general  law  cannot  be  enforced.  (In  re  Desanta,  8  Cal.  App. 
295,  96  Pac.  1027.) 

A  municipal  ordinance  licensing  brothels  is  subject  to  the  state 
law  punishing  the  crime  of  keeping  a  house  of  prostitution. 
(Farmer  v.  Behmer,  9  Cal.  App.  773,  100  Pac.  901.) 

An  ordinance  imposing  a  less  punishment  than  that  imposed 
by  the  general  law  for  the  same  offense  is  void.  (Ex  parte 
Sweetman,  5  Cal.  App.  577,  90  Pac.  1069.) 

A  city  ordinaHce  imposing  a  penalty  for  having  lottery  tickets 
in  one's  possession,  greater  than  the  penalty  provided  by  the 
general  laws  for  kindred  and  more  serious  offenses,  is  in  conflict 
with  the  general  laws  and  void.  (Ex  parte  Solomon,  91  Cal. 
440,  27  Pac.  757.) 

A  city  ordinance  providing  that  no  opium  shall  be  sold  with- 
out a  prescription  of  a  physician  is  not  in  conflict  with  the  state 
law  prohibiting  the  sale  of  opium  unless  a  record  be  kept  of 
the  sale  and  the  package  marked  "poison."  (Ex  parte  Hong 
Shen,  98  Cal.  681,  33  Pac.  799.) 

An  ordinance  is  not  inconsistent  with  the  general  law  merely 
because  it  makes  another  and  different  regulation  on  the  same 
subject,  when  there  is  no  direct  conflict  between  its  terms  and 
the  provisions  of  the  state  law.  (Ex  oarte  Hong  Shen,  98  Cal. 
681,  33  Pac.  799.) 

Where  the  penalty  imposed  for  the  violation  of  an  ordinance 
conflicts  with  the  provisions  of  the  Penal  Code,  the  penal  clause 
of  the  ordinance  is  void.  (Ex  parte  Mansfield,  106  Cal.  400,  39 
Pac.  775.) 

An  ordinance  declaring  it  unlawful  for  any  person  to  have  in 
his  possession  any  lottery  ticket,  unless  it  be  shown  that  such 
possession  is  innocent,  is  void  as  in  conflict  with  the  general 
presumption  of  innocence.  (In  re  Wong  Hane,  108  Cal.  680,  49 
Am,  St.  Eep.  138,  41  Pac.  693.) 

An  ordinance  forbidding  further  interment  in  the  city  ceme- 
tery is  not  in  conflict  with  section  3035  of  the  Political  Code. 
(La  Societa  etc.  v.  San  Francisco,  131  Cal.  169,  63  Pac.  174,  53 
L.  K.  A.  382.) 

It  is  competent  for  a  city  ordinance  to  prohibit  all  games 
played  for  money  which  are  not  specifically  denounced  by  the 
statute,     (In  re  Murphy,  128  Cal.  29,  60  Pac.  465.) 


377  CONSTITUTION  OP  1879.        Art.  XI,  §  11 

The  fact  that  an  ordinance  prohibiting  games  for  money  in- 
cludes, by  way  of  general  description,  games  prohibited  by  stat- 
ute, as  well  as  those  not  so  prohibited,  does  not  affect  the 
validity  of  the  ordinance;  but  all  games  so  prohibited  by  the 
general  laws  must  be  excluded  from  the  operation  of  the  ordi- 
nance.    (In  re  Murphy,  12S  Cal.  29,  60  Pac.  465.) 

Reasonableness,  etc. — A  municipal  ordinance  must  be  consist- 
ent with  the  general  powers  and  purposes  of  the  corporation, 
must  harmonize  with  the  general  laws,  the  municipal  charter, 
and  the  principles  of  the  common  law,  and  can  have  no  extra- 
territorial force  unless  by  express  permission  of  the  sovereign 
power.  (South  Pasadena  v.  Terminal  Ry.  Co.,  109  Cal.  315,  41 
Pac.  1093;  Ex  parte  Green,  94  Cal.  387,  29  Pac.  783;  In  re  Ah 
You,  88  Cal.  99,  22  Am.  St.  Rep.  280,  25  Pac.  974,  11  Pac.  408.) 

But  where  the  legislature  in  terms  confers  upon  a  municipal 
corporation  the  power  to  pass  ordinances  of  a  specified  char- 
acter, an  ordinance  passed  in  pursuance  thereof  cannot  be  im- 
peached as  invalid  because  it  would  have  been  regarded  as 
unreasonable  if  it  had  been  passed  under  the  incidental  powers 
of  the  corporation,  or  under  a  grant  of  power  general  in  its 
nature.  But  where  the  power  to  legislate  on  a  given  subject  is 
conferred  and  the  mode  of  its  exercise  is  not  prescribed,  then 
the  ordinance  passed  in  pursuance  thereof  must  be  a  reasonable 
exercise  of  the  power,  or  it  will  be  pronounced  void.  (Ex  parte 
Chin  Yan,  60  Cal.  78.) 

When  the  question  as  to  the  unreasonableness  of  a  municipal 
ordinance  is  in  doubt,  the  ordinance  will  be  upheld;  but  when 
the  ordinance  is  clearly  unreasonable,  it  will  be  held  void.  (Ex 
parte  McKenna,  126  Cal.  429,  58  Pac.  916.) 

The  question  of  the  reasonableness  of  an  ordinance  is  to  be 
determined  by  the  court  from  the  ordinance,  and  not  by  the 
jury  from  evidence  of  facts  not  appearing  upon  the  face  of  the 
ordinance.  (Merced  County  v,  Fleming,  111  Cal.  46,  43  Pac 
392.') 

In  determining  whether  or  not  an  ordinance  regulating  a 
lawful  business  is  reasonable  the  court  may  consider  matters 
dehors  the  ordinance,  but  not  the  motives  of  the  supervisors 
(In  re  Smith,  143  Cal.  368,  77  Pac.  180.) 

An  ordinance  may  be  reasonable  as  applied  to  the  regulation 
of  cemeteries  within  a  city  or  town,  which  would  be  unreason- 
able if  applied  to  all  parts  of  a  county  thinly  populated  in  many 


Art.  XI,  §  11       CONSTITUTION  OP  1879.  378 

of  its  parts.     (Los  Angeles  v.  Hollywood  Cem,  Assn.,  124  Cal. 
344,  71  Am.  St.  Eep.  7.5,  57  Pac.  153.) 

An  ordinance  restricting  the  use  of  private  property  in  the 
interests  of  the  public  health  must  bear  a  rational  relation  to 
the  object  sought  to  be  obtained  and  cannot  be  arbitrary  or 
unreasonable,  or  made  a  cloak  for  the  arbitrary  interference  with 
of  suppression  of  a  lawful  business.  >  But  the  courts  will  not 
interfere  with  the  exercise  of  legislative  discretion  unless  it 
clearly  appears  that  such  discretion  has  been  arbitrarily  or  un- 
reasonably exercised;  (Laurel  Hill  Cemetery  v.  City  and  County 
of  San  Francisco,  152  Cal.  464,  93  Pac.  70,  14  Ann.  Cas.  1080.) 

An  ordinance  imposing  a  fine  not  exceeding  one  thousand  dol 
lars  and  imprisonment  not  exceeding  six  months,  for  uttering 
profane  and  abusive  language  in  the  presence  of  other  persons, 
is  not  unreasonable.  (McDonald  v.  Taylor,  89  Cal.  42,  26  Pac. 
595.) 

A  city  ordinance  prohibiting  the  carrying  of  concealed  weapons 
by  any  person  other  than  public  officers  and  travelers,  without 
a  permit  of  the  police  commissioners,  and  prescribing  a  fine  of 
not  less  than  two  hundred  and  fifty  and  not  exceeding  five  hun- 
dred dollars,  or  imprisonment  not  less  than  three  and  not  ex- 
ceeding six  months,  or  both,  does  not  impose  any  excessive  or 
unreasonable  penalty.  (Ex  parte  Cheney,  90  Cal.  617,  27  Pac. 
436.) 

An  ordinance  making  a  violation  thereof  punishable  by  im- 
prisonment for  ten  days  and  a  fine  of  one  hundred  and  fifty  dol- 
lars, and  imprisonment  in  case  of  nonpayment  of  the  fine  at  the 
rate  of  two  dollars  a  day,  is  not  unreasonable.  (Ex  parte  Green, 
94  Cal.  387,  29  Pac.  783.) 

A  municipal  ordinance  permitting  a  fine  of  not  less  than 
twenty  and  not  more  than  one  thousand  dollars  for  visiting  a 
house  of  ill-fame  is  unreasonable,  and  not  in  harmony  with  the 
general  law.  (In  re  Ah  You,  88  Cal.  99,  22  Am.  St.  Kep.  280, 
25  Pac.  974,  11  L.  R.  A,  408.) 

A  county  ordinance  prohibiting  the  maintenance  of  gasworks 
in  a  sparsely  settled  rural  district,  and  which  has  the  effect  to 
stop  the  operation  of  the  gasworks  of  the  petitioner,  in  the 
immediate  vicinity  of  whicli  there  are  no  dwelling-houses,  is  un- 
reasonable.    (In  re  Smith,  143  Cal.  368,  77  Pac.  180.) 

An  ordinance  making  it  a  mi.-dempanor  to  sell  gas  at  a 
higher  rate  than  that  fixed  by  law  is  not  unreasonable  or  con- 


379  CONSTITUTION  OF  1879.        Art.  XI,  §  11 

trary  to  the  policy  of  the  state.     (Denninger  v.  Eecorder's  Court, 
145  Cal.  629,  79  Pac.  360.) 

Valid  ordinances. — In  accordance  with  the  foregoing  general 
principles,  the  following  ordinances  have  been  held  valid  as 
police  and  sanitary  measures:  An  ordinance  for  the  removal  of 
shade  trees  growing  in  the  sidewalks  of  public  streets  (Van 
derhurst  v.  Tholcke,  113  Cal.  147,  45  Pac.  266,  35  L.  E.  A.  267; 
an  ordinance  providing  for  a  sewer  farm  outside  of  a  city  (Mc- 
Bean  v.  Fresno,  112  Cal.  159,  53  Am.  St.  Eep.  191,  44  Pac.  358, 
31  L.  E.  A.  794);  an  ordinance  prohibiting  the  conducting  of 
any  carpet-beating  machine  within  one  hundred  feet  of  any 
church,  schoolhouse,  residence,  or  dwelling-house  (Ex  parte 
Lacey,  108  Cal.  326,  49  Am.  St.  Eep.  93,  41  Pac.  411,  38  L.  E.  A. 
640);  an  ordinance  providing  for  the  improvement  of  the 
channel  and  banks  of  a  river  passing  through  the  city  (De  Baker 
v.  Eailway  Co.,  106  Cal.  257,  46  Am.  St.  Eep.  237,  39  Pac.  610); 
a  city  ordinance  forbidding  the  beating  of  djrums  in  the  traveled 
streets  of  a  city,  without  the  permission  of  the  president  of 
the  board  of  trustees  (In  re  Flaherty,  105  Cal.  558,  38  Pac.  981, 
27  L.  E.  A.  529);  an  ordinance  providing  that  no  liquor  license 
shall  be  granted  to  any  person  who  has  conducted  the  business 
of  selling  liquors  in  any  place  where  females  are  employed 
(Foster  v.  Police  Commrs.,  102  Cal.  483,  41  Am.  St.  Eep.  194, 
37  Pac.  763);  an  ordinance  providing  that  no  license  shall  be 
issued  to  persons  engaged  in  the  sale  of  liquors  in  dance-cellars 
or  dance-halls,  or  in  places  where  musical,  theatrical,  or  other 
public  exhibitions  are  given,  and  where  females  attend  as  wait- 
resses (Ex  parte  Hayes,  98  Cal.  555,  33  Pac.  337);  an  ordinance 
fixing  the  license  for  conducting  a  saloon  where  females  are 
employed  and  where  intoxicating  liquors  are  sold  in  less  quanti- 
ties than  one  quart  at  a  higher  rate  than  a  license  for  conduct- 
ing a  saloon  where  females  are  not  employed  (Ex  parte  Felchlin, 
96  Cal.  360,  31  Am.  St.  Eep.  223,  31  Pac. '224,  approving  opinion 
of  McKinstry,  J.,  in  Matter  of  Maguire,  57  Cal.  604,  40  Am. 
Eep.  125);  a  city  ordinance  prohibiting  the  selling  of  pools  on 
horseraces,  except  within  the  inelosure  of  a  race-track  where 
the  race  is  to  be  run  (Kx  parte  Tuttle,  91  Cal.  589,  27  Pac.  933); 
an  ordinance  making  the  issuance  of  a  liquor  license  depend 
upon  the  permission  of  a  majority  of  the  police  commissioners 
or  the  approval  of  twelve  property  owners  in  the  block  in  which 
the  business  is  carried  on   (Ex  parte  Christensen,  85  Cal.  208, 


Art.  XI,  §  11       CONSTITUTION  OP  1879.  380 

24  Pao.  747) ;  an  act  providing  for  the  exclusion  of  all  unvac- 
cinated  clnldren  from  the  public  schools  (Abeel  v.  Clark,  84 
Cal.  226,  24  Pac.  383);  a  city  onlinance  making  it  unlawful  to 
visit  a  place  for  the  practice  of  gambling  ( Ex  parte  Lane,  76 
Cal.  587,  18  Pac.  677);  an  ordinance  proliibiting  the  maintenance 
within  the  city  limits  of  any  tippling-house,  dramshop,  or  bar- 
room, where  spirituous  liquors  are  sold  or  given  away  (Ex  parte 
Campbell,  74  Cal.  20,  5  Am.  St.  Eep.  418,  15  Pac.  318);  an  ordi- 
nance which  prohibits  any  person,  for  the  purpose  of  prostitu- 
tion, to  visit  any  building  kept  for  the  purpose  of  prostitution 
(Ex  parte  Johnson,  73  Cal.  228,  15  Pac.  43);  an  ordinance  pro- 
hibiting the  alteration  or  repair  of  any  wooden  building  within 
certain  designated  fire  limits,  without  permission  of  the  fire 
wardens  and  approval  of  a  majority  of  the  committee  on  fire 
department  and  the  mayor  (Ex  parte  Fiske,  72  Cal.  125,  13 
Pac.  310);  an  ordinance  prohibiting  the  keeping  of  more  than 
two  cows  within  certain  portions  of  a  city  (In  re  Linehan,  72 
Cal.  114,  13  Pac.  170);  an  ordinance  prohibiting  the  carrying 
on  of  a  public  laundry  within  the  city  limits,  except  within 
prescribed  boundaries  (In  re  Hang  Kie,  69  Cal.  149,  10  Pac 
327);  an  ordinance  prohibiting  the  carrying  on  of  a  laundry 
without  the  consent  of  the  board  of  supervisors,  except  in  a 
brick  or  stone  building  (In  re  Yick  Wo,  68  Cal.  294,  58  Am. 
Rep.  12,  9  Pac.  139);  an  ordinance  providing  that  all  buildings 
used  as  laundries  shall  be  constructed  but  one  story  in  height, 
with  brick  or  stone  walls,  and  with  metal  roofs,  doors,  and 
window  shutters  (Ex  parte  White,  67  Cal.  102,  7  Pac.  186);  a 
provision  of  a  city  charter  prohibiting  the  slaughtering  of  ani- 
mals and  the  maintenance  of  slaughter-houses  within  the  city 
(Ex  parte  Heilbron,  65  Cal.  609,  4  Pac.  648);  an  ordinance  mak- 
ing it  unlawful  for  any  person  to  conduct  a  laundry  within  cer- 
tain limits,  without  a  certificate  from  the  health  officer  as  to 
its  sanitary  condition,  and  a  certificate  from  one  of  the  fire 
wardens  as  to  the  condition  of  the  heating  appliances,  and  for- 
bidding the  operation  of  any  laundry  between  10  P.  M.  and  6 
A.  M.,  or  on  Sundays  (Ex  parte  Moynier,  65  Cal.  33,  2  Pac. 
728);  an  ordinance  prohibiting  the  utterance  of  profane  lan- 
guage in  the  hearing  of  two  or  more  persons  (Ex  parte  Delaney, 
43  Cal.  478) ;  an  ordinance  forbidding  the  sale  of  milk  of  cows 
fed  upon  still  slops,  etc.  (Johnson  v.  Simonton,  43  Cal.  242);  an 
ordinance  making  it  unlawful  to  play  upon  any  musical  instru- 


381  CONSTITUTION  OF  1879.        Art.  XI,  §  11 

ment,  etc.,  in  any  saloon,  etc.,  after  mldniglit  (Ex  parte  Smith 
&  Keating,  38  Cal.  702);  an  ordinance  malting  it  unlawful  for 
any  female  to  be  in  any  saloon,  etc.,  after  midnight  (Ex  parte 
Smith  &  Keating,  38  Cal.  702);  an  ordinance  providing  that  no 
person  shall  establish  or  maintain  any  slaughter-house,  keep 
herds  of  more  than  five  swine,  keep  or  cure  hides,  slaughter 
cattle,  etc.,  in  any  part  of  the  city  and  county  (Ex  parte 
Shrader,  33  Cal.  279);  an  ordinance  making  it  unlawful  for  any 
person  to  have  in  his  possession  any  lottery  ticket,  etc.  (Ex 
parte  McClain,  134  Cal.  110,  86  Am.' St.  Rep.  243,  66  Pac.  69, 
54  L.  R.  A.  779);  an  ordinance  making  it  unlawful  to  exhibit 
in  any  barred  or  barricaded  house  or  room  or  in  any  place  built 
or  protected  in  a  manner  to  make  it  difficult  of  access  to  police 
officers,  when  three  or  more  persons  are  present,  any  cards,  etc. 
(Matter  of  Ah  Cheung,  136  Cal.  678,  69  Pac.  492);  an  ordinance 
of  the  city  and  county  of  San  Francisco  prohibiting  interments 
of  dead  bodies  within  the  city  limits  (Odd  Fellows'  Cem.  Assn. 
V.  San  Francisco,  146  Cal.  226,  73  Pac.  987);  an  act  providing 
that  any  person  excluded  from  a  place  of  amusement  may  re- 
cover his  actual  damages  and  a  penalty  (Greenberg  v.  Western 
Turf  Assn.,  140  Cal.  357,  73  Pac.  1050);  an  ordinance  making  it 
■unlawful  to  maintain  gasworks  within  certain  defined  limits 
(Dobbins  v.  Los  Angeles,  139  Cal.  179,  96  Am.  St.  Rep.  95,  72 
Pac.  970;  In  re  Daly,  139  Cal.  216,  72  Pac.  1097);  an  ordinance 
requiring  the  exclusive  removal  of  all  garbage  by  the  city  to  be 
consumed  at  the  city  crematory  (In  re  Zhizhuzza,  147  Cal.  328, 
81  Pac.  955);  an  ordinance  employing  an  expert  medical  em- 
ployee as  health  officer  (Valle  v.  Shaffer,  1  Cal.  A  pp.  188,  81 
Pae.  1028);  an  ordinance  suppressing  public  billiard  and  pool 
rooms  (Ex  parte  Murphy,  8  Cal.  App.  2140,  97  Pae.  199);  an 
ordinance  forbidding  or  regulating  the  sale  of  poisons  (Ex  parte 
Hallawell,  8  Cal.  App.  563,  97  Pac.  320);  reasonable  regulations 
governing  the  use  of  streets  by  holders  of  franchises  (Merced 
Falls  Gas  etc.  Co.  v.  Turner, '2  Cal.  App.  720,  84  Pac.  239); 
an  ordinance  prohibiting  the  selling,  storing  or  keeping  for  sale 
of  intoxicating  litiuors,  excpt  at  private  residences  or  for 
medicinal,  meclianical  or  scientific  purposes  (Selma  v.  Brewer, 
9  Cal.  App.  70,  98  Pac.  61);  an  ordinance  forbidding  the  alco- 
holic liquor  traffic  (Ex  parte  Mogcnsen,  5  Cal.  App.  590,  90  Pae. 
1003);  an  ordinance  forbidding  the  escape  of  soot  from  any 
furnace  in  which  distillate  or  crude  oil  is  consumed  (In  re  Jun- 


Art.  XI,  §  11       CONSTITUTION  0?  1879.  382 

qua,  10  Cal.  App.  602,  103  Pac.  1C9) ;  an  ordinance  forbidding 
the  maintenance  of  a  laundry  in  the  city  limits  in  any  building 
used  in  part  for  a  public  store  (In  re  San  Chung,  11  Cal.  App. 
511,  105  Pac.  609);  an  ordinance  regulating  the  laying  of  sewers 
in  the  public  streets  (Harter  v.  Barkley,  138  Cal."  742,  112  Pac. 
556) ;  an  ordinance  prohibiting  the  business  of  selling  intoxi- 
cating liquors  within  the  county  of  Orange,  etc.  (Ex  parte 
Young,  154  Cal.  317,  97  Pac.  822,  22  L.  E.  A.,  N.  S.,  330);  an 
ordinance  limiting  the  liquor  business  to  certain  S'pecified  dis- 
tricts within  a  municipality  (Grumbach  v.  Lelande,  154  Cal. 
679,  98  Pac.  1059);  an  ordinance  forbidding  the  interment  of 
dead  bodies  within  the  limits  of  the  city  and  county  of  San 
Francisco  (Laurel  Hill  Cemetery  v.  City  and  County,  152  Cal. 
464,  93  Pac.  70,  14  Ann.  Cas.  1080);  a  law  forbidding  the  em- 
ployinent  of  children  under  the  age  of  fourteen  years  at  any 
regular  occupation  (In  re  Spencer,  149  Cal.  396,  117  Am.  St. 
Eep.  137,  86  Pac.  896,  9  Ann.  Cas.  1105). 

Invalid  5rdinances. — On  the  other  hand,  the  following  ordi- 
nances have  been  held  to  be  invalid  as  police  and  sanitary 
measures:  A  county  ordinance  forbidding  the  shipment  of  game 
from  the  county  in  which  it  has  been  lawfully  killed  (Ex  parte 
Knapp,  127  Cal.  101,  59  Pac.  315);  a  county  ordinance  making 
it  unlawful  to  establish,  extend  or  enlarge  any  cemetery  within 
the  county,  but  permitting  burials  in  cemeteries  already  estab- 
lished (Los  Angeles  v.  Hollj'wood  Cem.  Assn.,  124  Cal.  344,  71 
Am.  St.  Rep.  75,  57  Pac.  153);  a  municipal  ordinance,  not  pro- 
hibiting all  burials  within  the  city,  but  merely  prohibiting 
further  purchases  of  cemetery  lots,  and  allowing  burials  in  lots 
already  purchased  (Ex  parte  Bohen,  115  Cal.  372,  47  Pac.  55, 
36  L.  R.  A.  618);  an  ordinance  regulating  rates  of  transporta- 
tion of  a  street  railway  outside  of  the  city  limits  (South  Pasa- 
dena V.  Terminal  Ry.  Co.,  109  Cal.  315,  41  Pac.  1093);  a  county 
ordinance  providing  that  all  insane  asylums  shall  be  constructed 
of  either  brick,  iron,  or  stone,  and  surrounded  by  a  brick  or 
stone  wall,  that  they  shall  not  be  within  four  hundred  yards  of 
any  dwelling  or  school,  that  only  one  class  of  persons  shall  be 
treated  in  the  same  building,  and  that  male  and  female  patients 
shall  not  be  cared  for  in  the  same  building  (Ex  parte  Whitwell, 
98  Cal.  73,  35  Am.  St.  Rep.  152,  32  Pac.  870,  19  L.  R.  A.  727); 
an  ordinance  prohibiting  the  carrying  on  of  a  public  laundry 
within  the  corporate  limits  of  the  town,  except  in  certain  spec- 


383  CONSTITUTION  OP  1879.       Art.  XI,  §  11 

ified  bloel:s  thereof,  without  a  written  permit  from  the  board 
of  trustee?,  and  the  written  consent  of  a  majority  of  the  real 
property  owners  within  the  block  in  which  the  business  is  to 
be  carried  on,  and  also  of  the  four  blocks  immediately  sur- 
rounding the  same  (Ex  parte  Sing  Lee,  96  Cal.  354,  31  Am.  St. 
Eep.  218,  31  Pac.  245,  21  L.  R.  A.  195);  an  ordinance  requiring 
all  occupants  of  lands  witliin  ninety  days  to  exterminate  and 
destroy  the  ground-sciuirrels  on  their  respective  lands  (Ex  parte 
Hodges,  87  Cal.  162,  25  Pac.  277);  an  ordinance  making  it  un- 
lawful for  any  contractor  performing  work  for  the  city  to 
employ  any  person  to  work  more  than  eight  hours  a  day,  or  to 
employ  Chinese  labor  (Ex  parte  Kuback,  85  Cal.  274,  20  Am. 
St.  Rep.  226,  24  Pac.  737,  9  L.  E.  A.  482);  an  ordinance  intended 
to  discriminate  in  favor  of  sportsmen  and  against  all  other  per- 
sons in  respect  to  the  disposition  of  game  lawfully  killed  (Ex 
parte  Knapp,  127  Cal.  101,  59  Pac.  315);  an  ordinance  pro- 
hibiting the  employment  of  females  in  dance-halls,  etc.  (Matter 
of  Maguire,  57  Cal.  604,  40  Am.  Rep.  125.  But  see  Ex  parts 
Felchlin,  96  Cal.  360,  31  Am.  St.  Rep.  223,  31  Pac.  224); 
a  municipal  ordinance  which  undertakes  to  absolutely  forbid 
the  erection  or  maintenance  of  any  billboard  for  advertising  pur- 
poses. (Varney  &  Green  v.  Williams,  155  Cal.  318,  132  Am.  St. 
Eep.  88,  100  Pac.  867,  21  L.  R.  A.,  N.  S.,  741.) 

An  act  prohibiting  any  person  from  selling  tickets  to  a 
theater  or  other  place  of  amusement  for  a  price  higher  than  that 
originally  charged  by  the  management  thereof,  is  invalid.  (Ex 
parte  Quarg,  149  Cal.  79,  117  Am.  St.  Rep.  115,  84  Pac.  766, 
5  L.  R.  A.,  N.  S.,  183,  9  Ann.  Cas.  747.) 

An  act  requiring  the  durable  marking  of  packages  of  butter 
containing  less  than  six  pounds,  and  more  than  one-half  pound, 
by  figures  or  letters  not  less  than  one-fourth  of  an  inch  high, 
BO  as  to  advise  the  purchaser  or  others  as  to  the  exact  weight 
of  butter  contained  in  such  package.  (Ex  parte  Dietrich,  149 
Cal.  104,  84  Pac.  770,  5  L.  R.  A.,  N.  S.,  873.) 

License  regulations. — An  ordinance  requiring  a  license  tax 
from  all  peddlers  of  meat,  fish,  vegetables,  fruit,  game,  poultry, 
etc.,  is  valid.     (Ex  parte  Ileylman,  92  Cal.  492,  28  Pac.  675.) 

An  ordinance  requiring  a  license  to  be  obtained  by  every 
person  who  at  a  fixed  place  of  business  sells  any  goods,  etc., 
it  authorized  by  this  section.     (Ex  parte  Mount,  66  Cal.  448, 


Art.  XI,  §  11       CONSTITUTION  OP  1879.  384 

6  Pac.  78;  San  Luis  Obispo  v.  Greenberg,  120  Cal.  300,  52  Pac. 
797.) 

An  ordinance  imposing  upon  traveling  salesmen  a  license  tax 
of  fifty  dollars  per  quarter  is  valid,  although  a  less  amount  ia 
imposed  upon  those  who  sell  at  a  fixed  place  of  business.  (Ex 
parte  Haskell,  112  Cal.  412,  44  Pac.  725,  32  L.  E.  A.  527.) 

An  ordinance  requiring  all  persons  engaged  in  the  business 
of  raising,  grazing,  herding,  or  pasturing  sheep  in  the  county 
to  pay  an  annual  license  of  fifty  dollars  for  every  thousand 
sheep  is  valid.     (Ex  parte  Mirande,  73  Cal.  365,  14  Pac.  888.) 

A  governing  body  of  a  city  or  county  in  denying  a  liquor 
license  is  not  limited  to  the  terms  of  the  ordinance,  but  in 
the  exercise  of  the  police  power  may  refuse  it  upon  sufficient 
grounds  addressed  to  the  unfitness  of  the  applicant  or  the  unsuit- 
ableness  of  the  place  at  which  the  license  is  to  be  exercised. 
(Reed  v.  Collins,  5  Cal.  App.  494,  90  Pac.  973.) 

An  ordinance  requiring  a  license  on  dogs  and  requiring  the 
owner  to  attach  to  the  collar  a  tag  as  evidence  of  ownership,  and 
pajMuent  of  the  tax,  and  providing  for  the  destruction  of  dogs 
bearing  no  collar  as  required  is  valid.  (In  re  Ackerman,  6  Cal. 
App.  5,  91  Pac.  429.) 

A  license  imposed  upon  dogs  is  an  exercise  of  the  police,  and 
not  of  the  taxing  power.  (In  re  Ackerman,  6  Cal.  App.  5,  91 
Pac.  429.) 

The  power  to  regulate  a  business  may  be  exercised  by  means 
of  a  license  fee,  provided  the  amount  is  not  more  than  is  rea- 
sonably necessary  for  the  regulation  of  the  business.  (Plumas 
Co.  V.  Wheeler,  149  Cal.  758,  87  Pac.  909.) 

A  city  has  no  power  to  impose  a  license  tax  upon  the  right 
to  practice  law.     (Sonora  v.  Curtin,  137  Cal.  583,  70  Pac.  674.) 

An  ordinpnce  levying  a  license  tax  upon  all  sheep  which  are 
pastured  in  the  county,  except  sheep  listed  as  taxable  property 
in  the  county,  and  upon  which  taxes  are  paid,  is  not  a  valid 
police  regulation.     (Lassen  Co.  v.  Cone,  72  Cal.  387,  14  Pac.  100.) 

A  municipal  ordinance  which,  under  the  guise  of  a  revenue 
measure,  attempts  to  put  an  end  to  the  issue  of  trading  stamps, 
by  levying  an  excessive  tax  upon  that  business,  however  small 
their  monthly  sales,  assuming  to  exact  from  them  a  tax  eight 
times  that  required  of  merchants  doing  the  largest  business, 
is  unreasonable  and  void.  (Ex  parte  McKenna,  126  Cal.  429, 
58  Pac.  916.) 


383  CONSTITUTION  OF  1879.         Art.  XI,  §  11 

An  ordirnnce  requiring  a  license  fee  of  fifty  dollars  a  month 
for  carrying  on  a  saloon,  where  liquors  are  sold  or  given  away 
dn  quantities  less  than  a  gallon,  will  not  be  presumed  to  be 
oppressive,  unreasonable  or  prohibitory  of  trade.  (In  re  Guer- 
rero, 69  Cal.  88,  10  Pac.  261.) 

A  county  may  impose  a  license  tax  upon  the  sale  of  spirituous 
liquors.     (Ex  parte  Welters,  65  Cal.  2C9,  3  Pac.  894.) 

An  ordinance  making  it  a  misdemeanor  to  sell  liquors  with- 
out a  license  is  a  valid  police  regulation,  (In  re  Stuart,  61  Cal. 
374.) 

An  ordinance  establishing  a  license  tax  of  twenty-five  dollars 
a  month  for  the  sale  of  spirituous  and  fermented  liquors  is  not 
unreasonable,  oppressive  or  in  restraint  of  trade.  (Ex  parte 
Benninger,  64  Cal.  291,  30  Pac.  846.) 

A  county  ordinance  providing  a  smaller  license  tax  for  the 
sale  of  spirituous  liquors  at  wayside  inns  and  rural  watering 
places  than  when  sold  in  a  city  is  not  unlawful  as  unreasonable, 
oppressive,  or  in  restraint  of  trade.  (Amador  Co.  v.  Kennedy, 
70  Cal.  458,  11  Pac.  757.) 

The  same  is  true  of  an  ordinance  imposing  a  higher  tax  upon 
such  saloons.     (Ex  parte  Stephen,  114  Cal.  278,  46"Pac.  86.) 

An  ordinance  imposing  an  anraial  tax  of  two  hundred  dollars 
upon  the  business  of  selling  spirituous  liquors  within  the  city 
limits  is  valid.     (Ex  parte  McNally,  73  Cal.  632,  15  Pac.  368.) 

An  ordinance  providing  that  a  liquor  license  can  only  be 
obtained  upon  petition  to  the  city  council  of  the  applicant  ac- 
com{)anied  by  a  certificate  of  five  respectable  citizens  of  the 
neighborhood  in  which  the  business  is  to  be  conducted  as  to  his 
character,  and  upon  a  determination  by  the  board  that  he  is 
qualified  to  carry  on  the  business,  is  valid.  (In  re  Bickerstaff, 
70  Cal.  35,  11  Pac.  393.) 

An  ordinance  purporting  to  regulate  the  business  of  selling 
liquors,  but  in  fact  prohibiting  the  sale  thereof,  cannot  be  up- 
held.    (Merced  Co.  v.  Flemming,  111  Cal.  46,  43  Pac.  392.) 

An  ordinance  imposing  a  license  tax  for  carrying  on  the 
"business"  or  "occupation"  of  retail  liquor  dealer  in  a  "retail 
liquor  establishment,"  is  a  tax  upon  the  business  and  not  upon 
the  articles  sold.  (Los  Angeles  v.  Eikenberry,  131  Cal.  461,  63 
Pac.  766.) 

Constitution — 25 


Art.  XI,  §  12        CONSTITUTION  OF  1879.  38G 

A  count}'  ordinance  imposing  a  liquor  license  of  tliirtsen  dol- 
lars per  month  is  reasonable,  (Los  Angeles  v.  Eikenberry,  131 
Cal.  461,  63  Pac.  767.) 

Assessment  and  collection  of  taxes. 

Sec.  12.  The  legislature  shall  have  no  power  to  im- 
pose taxes  upon  counties,  cities,  towns,  or  other  public 
or  municipal  corporations,  or  upon  the  inhabitants  or 
property  thereof,  for  county,  city,  town,  or  other  munic- 
ipal purposes,  but  may,  by  general  laws,  vest  in  the  cor- 
porate authorities  thereof  the  power  to  assess  and  collect 
taxes  for  such  purposes. 

TAXATION  FOE,  MUNICIPAL  PURPOSES.— Under  this  sec- 
tion the  whole  subject  of  county  and  municipal  taxes  for  local 
purposes  is  relegated  to  the  corporate  authorities  thereof,  and 
the  legislature  has  no  power  to  impose  any  tax  whatever  within 
those  territories  for  local  purposes.  (San  Francisco  v.  Insurance 
Co.,  74  Cal.  113,  5  Ani.  St.  Rep.  425,  15  Pac.  380.) 

The  legislature  cannot  directly  exorcise  the  power  of  assess- 
ment within  an  incorporated  city,  but  may  empower  the  munici- 
pal authorities  to  do  so.  (People  v.  Lynch,  51  Cal.  15,  21  Am. 
Rep.  677.) 

The  legislature  has  power  to  direct  and  control  the  affairs 
and  property  of  a  municipal  corporation  for  municipal  purposes, 
and  may  for  such  purposes  so  control  its  affairs  by  appropriate 
legislation  as  ultimately  to  compel  it,  out  of  the  funds  of  its 
treasury,  or  by  taxation,  to  pay  a  demand  which  in  good  con- 
science it  ought  to  pay.      (Sinton  v.  Ashbury,  41  Cal.  525.) 

The  legislature  may  authorize  the  authorities  of  a  city  to 
purchase  an  agricultural  park,  to  issue  bonds  in  payment  there- 
for, and  to  levy  a  tax  for  the  payment  of  the  same.  (Bank  of 
Sonoma  v.  Fairbanks,  52  Cal.   196.) 

The  power  of  a  county  or  other  public  corporation  to  impose 
taxes  is  onlv  that  which  is  granted  bv  the  legislature.  (Hughes 
V.  Ewing,  93  Cal,  414,  28  Pac.  1067.') 


387  CONSTITUTION  OF  1879.       Art.  XI,  §  12 

The  legislature  cannot  imposo  a  tax  iipon  the  property  or  in- 
habitants of  a  school  district,  without  leaving  any  discretion 
in  regard  thereto  to  the  local  authorities.  (McCabe  v.  Car- 
penter, 102  Cal.  4G9,  36  Pac.  836.) 

A  local  board  cannot  be  authorized  to  levy  local  taxes  and 
assessments  for  a  general  public  purpose.  (People  v.  Parks, 
58  Cal.  624.) 

An  ordinance  imposing  a  license  tax  and  distinguishing  be- 
tween hotels  where  meals  are  cooked  and  served  by  a  pro- 
prietor or  the  members  of  his  family  and  those  where  meals 
are  not  so  cooked  and  served  is  valid.  (Ex  parte  Lemon,  143 
Cal.  558,  77  Pac.  455,  65  L.  R.  A.  946.) 

License  taxes  for  revenue  are  taxes  within  the  meaning  of 
this  section.     (Ex  parte  Jackson,  143  Cal.  564,  77  Pac.  457.) 

The  act  of  1876,  authorizing  the  construction  of  a  bridge, 
and  declaring  that  the  cost  should  be  assessed  upon  certain 
specified  lands,  and  providing  for  a  commission  to  apportion 
the  cost,  was  held  constitutional.  (Pacific  Bridge  Co.  v.  Kirk- 
ham,  64  Cal.  519,  2  Pac.  409.) 

An  act  providing  for  the  completion  of  the  city  hall  in 
San  Francisco,  and  providing  that  the  work  should  only  be  done 
after  the  board  of  supervisors  declare  that  they  deem  the  work 
expedient,  is  not  violative  of  this  section.  (People  v.  Bartlett, 
67  Cal.  156,  7  Pac.  417.) 

This  section  does  not  prevent  a  city  from  providing  in  a  free- 
holders' charter  for  taxation  for  municipal  purposes.  (Security 
Sav.  etc.  Co.  v.  Hinton,  97  CaL  214,  32  Pac.  3.) 

The  words  "corporate  authorities  thereof"  are  to  be  con- 
strued distributively  as  referring  to  the  governing  body  of  each 
of  the  several  municipalities  and  quasi  municipalities  referred 
to  in  the  section,  and  as  importing  the  legislative  department 
of  the  municipalitv  only.  (Board  of  Education  v.  Board  of 
Trustees,  129  Cal.  .599,  62  Pac.  173.) 

The  provision  of  the  fee  bill  of  1895,  requiring  the  payment 
of  one  dollar  for  each  one  thousand  dollars,  in  excess  of  three 
thousand  dollars,  of  the  appraised  value  of  an  estate,  upon  the 
filing  of  the  inventory,  is  in  violation  of  this  section.  (Fatjo 
V.  Pfister,  117  Cal.  83,  48  Pac.  1012.) 

An  act  requiring  foreign  insurance  corporations  to  pay  to  the 
county  treasury  a  certain  proportion  of  premiums  received  by 
them,  to  constitute  a  firemen's  relief  fund,  to  be  under  the  con- 


Art.  XI,  §  12       CONSTITUTION  OP  1879.  388 

trol  of  the  fire  commissioners,  is  in  violation  of  tbis  section. 
(San  Francisco  v.  Insurance  Co.,  74  Cal.  113,  5  Am.  St.  Eep. 
425,  15  Pac.  380.) 

An  act  validating  a  void  assessment  is  contrary  to  the  provi- 
sions of  this  section.  (Brady  v.  King,  53  Cal.  44;  Taylor  v. 
Palmer,  31  Cal.  240;  People  v.  Lynch,  51  Cal.  15,  21  Am.  Rep. 
677;  Schumaker  v.  Toberman,  56  Cal.  508;  Fanning  v.  Schammel, 
68  Cal.  428',  9  Pac.  427;  Kelly  v.  Luning,  76  Cal.  309,  18  Pac. 
335.) 

An  act  requiring  the  trustees  of  a  swamp  land  reclamation 
district  to  make  up  a  sworn  statement  of  the  cost  of  the  reclama- 
tion work,  "based  upon  the  books  and  vouchers  thereof,"  and  re- 
quiring the  amount  so  reported  to  be  assessed  upon  the  lands 
of  the  district,  is  violative  of  the  provisions  of  this  section. 
(People  V.  Houston,  54  Cal.  536.) 

The  act  of  1891,  permitting  the  organization  and  creation 
of  sanitary  districts,  is  not  in  violation  of  this  section,  since 
such  districts  do  not  necessarily  include  municipal  corporations. 
(Woodward  v.  Fruitvale  Sanitary  Dist.,  99  Cal.  554,  34  Pae. 
239.) 

An  act  authorizing  the  county  superintendent  of  schools  to 
furnish  the  board  of  supervisors  an  estimate  of  a  tax,  and  mak- 
ing it  the  duty  of  the  board  to  proceed  to  fix  a  rate  which  will 
realize  the  amount  of  the  estimate,  is  void.  (McCabe  v.  Car- 
penter, 102  Cal.  469,  36  Pac.  836.) 

This  section  does  not  invalidate  the  provisions  of  the  Political 
Code  making  the  city  of  Eureka  liable  for  the  expense  of  work 
on  Humboldt  bay  outside  of  the  city — that  provision  having 
been  enacted  prior  to  the  new  constitution.  (Quigg  v.  Evans, 
121  Cal.  546,  53  Pac.  1093.) 

The  general  municipal  corporation  act  authorizing  the  boards 
of  trustees  of  cities  to  adopt  a  revenue  system  is  valid.  (Escon- 
dido  V.  Escondido  L.  etc.  Co.,  8  Cal.  App.  435,  97  Pac.  197.) 

Section  39  of  the  Wright  Irrigation  Act,  providing  that  if 
the  trustees  of  the  district  fail  to  levy  a  tax  to  pay  the  bonds 
of  the  district,  the  board  of  supervisors  shall  do  so,  is  not  un- 
constitutional. (Nevada  Nat.  Bank  v.  Supervisors,  5  Cal.  App. 
638,  91  Pac.  122.) 

License  taxes. — A  license  tax  graduated  according  to  the 
amount  of  the  monthly  sales  of  the  merchant  is  valid,  since  it 


389  CONSTITUTION  OF  1879.        Art.  XI,  §  12 

applies  uniformly  to  all  persons  in  the  same  category.  (Sacra- 
mento V.  Crocker,  16  Cal.  119.) 

A  law  imposing  upon  a  person  residing  in  a  given  section  of 
the  state  a  license  as  a  merchant  without  reference  to  his  occu- 
pation would  be  void.     (Ex  parte  Ah  Pong,  19  Cal.  106.) 

Under  this  section  a  municipality  may  impose  a  license  tax 
for  the  purpose  of  revenue.  (In  re  Guerrero,  69  Cal.  88,  10  Pac. 
261.) 

This  section  authorizes  the  imposition  by  a  county  of  a  li- 
cense tax  on  the  sale  of  spirituous  liquors  and  the  appoint- 
ment of  a  suitable  person  to  collect  the  same.  (In  re  Lawrence, 
69  Cal.  608,  11  Pac.  217.) 

A  license  imposed  by  the  legislature  for  carrying  on  the  busi- 
ness of  selling  goods,  etc.,  at  a  fixed  place  of  business,  is  a 
"tax"  within  the  meaning  of  this  section,  and,  being  for  county 
purposes,  is  in  violation  of  this  section.  (People  v.  Martin, 
60  Cal.  153.) 

A  county  ordinance  imposing  a  license  tax  upon  every  person 
engaged  in  the  business  of  raising,  grazing,  herding,  or  pastur- 
ing sheep,  etc.,  within  the  county,  is  authorized  by  this  section. 
(EI  Dorado  v.  Meiss,  100  Cal.  208,  34  Pac.  716.) 

The  fact  that  such  ordinance  applies  to  nonresidents  as  well 
as  residents,  instead  of  being  an  objection  to  the  validity  of  the 
tax,  is  essential  to  sustain  its  validity.  (El  Dorado  v.  Meiss, 
100  Cal.  268,  34  Pac.  716.) 

A  city  ordinance  regulating  liquor  licenses,  and  a  section  of 
the  city  charter  giving  the  citj''  a  remedy  by  civil  action  in  any 
case  where  a  person,  required  by  any  ordinance  to  take  out  a 
license  and  to  pay  therefor,  shall  fail  to  do  so,  are  not  in  con- 
flict with  this  section.  (Sacramento  v.  Dillman,  102  Cal.  107, 
36  Pac.  385.) 

When  the  right  to  collect  a  license  tax  by  suit  is  limited  to 
instances  in  which  the  persons  commenced  some  "business,"  no 
action  can  be  maintained  to  recover  a  license  tax  for  the  sale 
of  intoxicating  liquors,  since  such  sale  is  not  a  business.  (Mer- 
ced Co.  v.  Helm,  102  Cal.  159,  36  Pac.  399.) 

But  an  ordinance  requiring  "every  person  who  in  any  saloon, 
etc.,  sells  or  gives  away"  any  intoxicating  liquor  to  pay  a  li- 
cense tax,  should  be  construed  as  a  tax  upon  the  business. 
(Ex  parte  Mansfield,  106  Cal.  400,  39  Pac.  775.     Merced  Co.  v. 


Art.  XI,  §  13        CONSTITUTION  OF  1879.  390 

Ilclm,  102  Cal.  15D,  36  Pac.  399,  distinguished.  See,  also,  Ex 
parte  Senbe,  ]15  Cal.  629,  47  Pac.  596.) 

Where  a  county  passed  an  ordinance  requiring  a  high  license 
tax  for  tlie  sale  of  intoxicating  liquors  but  fixing  no  penalty 
for  engaging  in  the  business,  the  ordir.ance  is  not  to  be  regarded 
as  the  exercise  of  the  police  power,  but  as  a  revenue  measure. 
(Merced  Co.  v.  Helm,  102  Cal.  159,  36  Pac.  399.) 

A  county  ordinance  imposing  a  license  for  revenue  on  the 
business  of  liquor  dealer  is  valid,  and  such  license  may  be 
collected  within  cities.  (Ex  parte  Mansfield,  106  Cal.  400,  39 
Pac.  775;  Ventura  Co.  v.  Clay,  112  Cal.  65,  44  Pac.  488.) 

This  section  does  not  prohibit  the  legislature  from  enacting 
a  law  preventing  counties,  cities,  etc.,  from  levying  and  col- 
lecting a  license  tax  for  revenue.  (Ex  parte  Pfirrraan,  134  Cal. 
143,  66  Pac.  205.) 

Powers  not  to  be  delegated  to  special  commission,  etc. 

Sec.  13.  The  legislature  shall  not  delegate  to  any 
special  commission,  private  corporation,  company,  asso- 
ciation, or  individual,  any  power  to  make,  control,  ap- 
propriate, supervise,  or  in  any  way  interfere  with,  any 
county,  city,  town,  or  municipal  improvement,  money, 
property,  or  effects,  whether  held  in  trust  or  otherwise, 
or  to  levy  taxes  or  assessments,  or  perform  any  munici- 
pal functions  whatever. 

MUNICIPAL  FUNDS.— This  section  is  prospective,  and  ap- 
plies only  to  legislation  enacted  after  its  adoption.  (Commis- 
sioners V.  Trustees,  71  Cal.  310,  12  Pac.  224.) 

The  legislature  may  direct  a  municipality  to  audit  and  allow 
claims  against  the  municipality.  (People  v.  Supervif  prs,  11  Cal. 
206.) 

This  section  equally  forbids  the  legislature  from  delegating 
to  a  municipal  corporation  power  to  do  what  the  legislature 
is  itself  forbidden  from  doing  by  this  section.  (Yarnell  v.  Los 
Angeles,  87  Cal.  C03,  25  Pac.  767.) 


Art.  XI,  Sec.  13.     Insert  at  Page  390. 

See.  13.  The  legislature  shall  not  delegate  to  any 
special  commission,  private  corporation,  company, 
association  or  individual  any  power  to  make,  control, 
appropriate,  supervise  or  in  any  way  interfere  with 
any  county,  city,  town  or  municipal  improvement, 
money,  property,  or  effects,  whether  held  in  trust  or 
otherwise,  or  to  levy  taxes  or  assessments  or  perform 
any  municipal  function  whatever,  except  that  the 
legislature  shall  have  power  to  provide  for  the  super- 
^ision,  regulation  and  conduct,  in  such  manner  as  it 
may  determine,  of  the  affairs  of  irrigation  districts, 
reclamation  districts  or  drainage  districts,  organized 
or  existing  under  any  laAV  of  this  state.  (Amend- 
ment adopted  November  3,  1914.) 


391  CONSTITUTION  OP  1879.        Art.  XI,  §  13 

The  legislature  Las  no  control  over  funds  of  a  municipality 
except  to  appropriate  them  for  municipal  purposes  or  in  satis- 
faction of  some  valid  claim  aa;ainst  the  municipality.  (Conlin 
V.  Supervisors,  114  Cal.  404,  46  Pac.  279,  33  L.  R.  A.  752.) 

An  act  creating  a  police  life  and  health  insurance  fund  does 
not  create  a  "special  commission"  within  the  meaning  of  this 
section.     (Pennie  v.  Ecis,  80  Cal.  266,  22  Pae.  176.) 

Where  an  act  leaves  it  discretionary  with  the  local  legisla- 
tive body  whether  or  not  the  improvement  shall  be  made,  but 
provides  that,  if  done,  it  shall  be  done  by  a  commission  created 
by  the  act,  it  is  not  in  violation  of  this  section.  (Lent  v. 
Tillson,  72  Cal.  404-,  14  Pac.  71.) 

An  act  providing  for  the  commitment  of  minor  criminals 
to  nonsectarian  charitable  corporations,  the  expense  of  mainte- 
nance to  be  paid  by  the  county,  is  not  in  violation  of  this 
section.  (Boys'  and  Girls'  Aid  Soc.  v.  Eeis,  71  Cal.  627,  12 
Pac.  796.) 

Where  commissioners  to  open  streets  are  simply  made  the 
agents  of  the  municipality,  and  act  under  the  direction  of  the 
city  authorities,  this  section  is  not  violated.  (Davies  v.  Los 
Angeles,  86  Cal.  37,  24  Pac.  771.) 

The  act  of  1891,  permitting  the  organization  and  creation 
of  sanitary  districts,  is  not  in  conflict  with  this  section,  since 
such  districts  do  not  necessarily  include  municipal  corporations. 
(Woodward  v.  Fruitvale  Sanitary  Dist.,  99  Cal.  554,  34  Pac. 
239.) 

An  ordinance  providing  that  mmiicipal  bonds  shall  be  payable 
outside  of  the  state,  at  a  bank  in  New  York,  is  in  violation 
of  this  section.  (Los  Angeles  v.  Teed,  112  Cal.  319,  44  Pac. 
580.) 

But  a  contract  by  the  board  of  supervisors  for  the  sale  of 
bonds  at  par,  to  be  made  payable  at  a  bank  in  another  county, 
does  not  constitute  such  bank  a  custodian  of  county  funds,  or 
the  agent  of  either  party.  (Mack  v.  Jastro,  126  Cal.  130,  58 
Pac.  372.) 

A  statute  conferring  upon  the  supervisors  power  to  license 
individuals  to  take  tolls  on  a  public  road,  as  compensation  for 
keeping  the  road  in  repair,  is  not  in  violation  of  this  provision. 
(Blood  V.  McCarty,  112  Cal.  561,  44  Pac.   1025.) 

An  act  allowing  county  officers  to  appoint  deputies,  whose 
salaries  are   fixed   by  the   act   and    made   payable   out    of   the 


Art.  XI,  §  131/2    CONSTITUTION  OF  1879.  392 

county  treasury,  is  not  in  violation  of  this  section.  (Tulare 
Co.  V.  May,  118  Cal.  303,  50  Pac.  427.) 

An  act  permitting  the  county  clerk  to  make  the  compensation 
of  the  number  of  deputies  he  may  see  fit  to  appoint  a  charge 
upon  the  county  treasury  violates  this  section.  (San  Francisco 
V.  Broderick,  125  Cal.  188,  57  Pac.  887.) 

The  authority  given  by  the  Vrooman  Act  to  the  contractor 
to  collect  the  assessment  is  not  a  delegation  of  a  municipal 
function.     (Banaz  v.  Smith,  133  Cal.  102,  65  Pac.  309.) 

To  convey  to  a  mortgagee  the  statutory  powers  of  the  board 
of  trustees  of  an  irrigation  district  is  in  violation  of  this  section, 
(Merchants'  Bank  v.  Escondido  Irr.  Dist.,  144  Cal.  329,  77  Pac. 
937.) 

This  provision  applies  to  public  or  .  municipal  corporations, 
such  as  irrigation  districts,  as  well  as  to  ordinary  municipalities 
or  cities.  (Merchants'  Bank  v.  Escondido  Irr.  Dist.,  144  Cal. 
329,  77  Pac.  937.) 

The  fixing  of  the  boundaries  of  the  territory  to  be  annexed 
to  a  city  or  town  is  not  a  municipal  function.  (People  v.  On- 
tario, 148  Cal.  625,  84  Pac.  205.) 

The  initiative  and  referendum  is  not  in  violation  of  this  sec- 
tion, since  the  aggregate  bod)'  of  voters  cannot  be  held  to  be  a 
special  commission.  (In  re  Pfahler,  150  Cal.  71,  88  Pac.  270, 
11  Ann.  Cas.  911.) 

The  object  of  this  section  was  to  emancipate  municipal  cor- 
porations from  the  authority  and  control  formerly  exercised 
over  them  by  the  legislature.  (In  re  Pfahler,  150  Cal.  71,  88  Pac. 
270,   11   Ann.   Cas.   911.) 

The  commission  provided  for  in  the  act  of  1907  to  change 
the  boundary  between  Fresno  and  Kings  counties  is  not  within 
the  prohibition  of  this  section.  (Wheeler  v.  Herbert,  152  Cal. 
224,  92  Pac.   353.) 

Payment  of  bonds. 

Sec.  131/2-  Nothing  in  this  constitution  contained 
shall  be  constmed  as  prohibiting  the  state  or  any 
county,  city  and  county,  city,  town,  municipality,  or 
other  public  corporation,  issuing  bonds  under  the   laws 


Art.  XI,  Sec.  13|.     Insert  at  Page  392. 

See.  13|.  Any  eounty,  city  and  county,  city,  town, 
municipality,  irrigation  district,  or  other  public  cor- 
poration, issuing  bonds  under  the  laws  of  the  state, 
is  hereby  authorized  and  empowered  to  make  said 
])onds  and  the  interest  thereon  payable  at  any  place 
or  places  within  or  outside  of  the  United  States,  and 
in  any  money,  domestic  or  foreign,  designated  in  said 
bonds.     (Amendment   adopted   November  3,   1914.) 


393  CONSTITUTION  OP  1879.     Art.  XI,  §§  1-4, 15 

of  tlie  state,  to  make  said  bonds  payable  at  any  place 
within  the  United  States  designated  in  said  bonds. 
(New  section  added  by  amendment  adopted  November 
6,  1906.) 

Inspection  oflScers,  appointment  of. 

See.  14.  The  legislature  may  „  /  general  and  uni- 
form laws  provide  for  the  inspection,  measurement  and 
graduation  of  merchandise,  manufactured  articles  and 
commodities,  and  may  provide  for  the  appointment  of 
such  officers  as  may  be  necessary  for  such  inspection, 
measurement  and  graduation.  (Amendment  approved 
October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  14.  No  state  office  shall  be  continued  or  created  in  any 
county,  city,  town  or  other  municipality,  for  the  inspection, 
measurement  or  graduation  of  any  merchandise,  manufacture, 
or  commodity;  but  such  county,  city,  town,  or  municipality  may, 
when  authorized  by  general  law,  appoint  such  officers. 

This  section  abolished  the  office  of  inspector  of  gas  meters 
created  by  section  577  et  seq.  of  the  Political  Code.  (Coudict 
V.  Police  Court,  59  Cal.  278.) 

Private  property  not  liable  for  corporate  debt  of  munic- 
ipality. 

Sec.  15.  Private  property  shall  not  be  taken  or  sold 
for  the  payment  of  the  corporate  debt  of  any  political  or 
municipal  corporation. 


Art.  XI,  §§  16,  ICyo     CONSTITUTION  OF  1879.  394 

Moneys,  etc.,  to  be  deposited  with  treasurer. 

Sec.  16.  All  moneys,  assessments,  and  taxes  belong- 
ing to  or  collected  for  the  use  of  any  county,  city,  town, 
or  other  public  or  municipal  corporation,  coming  into 
the  hands  of  any  officer  thereof,  shall  immediately  be 
deposited  with  the  treasurer,  or  other  legal  depositary, 
to  the  credit  of  such  city,  town,  or  other  corporation  re- 
spectively, for  the  benefit  of  the  funds  to  which  they 
respectively  belong. 

MUNICIPAL  rUNDS.— This  section  only  relates  to  those 
oHicers  who  rightfully  or  officially  receive  money  for  the  county. 
(San  Luis  Obispo  v.  Farnum,  108  Cal.  562,  41  Pac.  445.) 

The  words  "legal  depositary"  do  not  include  a  private  in- 
dividual or  corporation.  (Yarnell  v.  Los  Angeles,  87  Cal.  603, 
25  Pac.  767.) 

An  ordinance  providing  that  municipal  bonds  shall  be  payable 
outside  of  the  state,  at  a  bank  in  New  York,  is  in  violation 
of  this  provision.  (Los  Angeles  v.  Teed,  112  Cal.  319,  44  Pac. 
580.) 

Funds  of  a  school  district  are  not  subject  to  the  control  of  the 
county.  (Pacific  etc.  Ins.  Co.  v.  San  Diego,  112  Cal.  314,  41 
Pac.   423,  44  Pac.  57L) 

A  contract  by  a  municipal  corporation  making  the  bank 
which  will  pay  the  highest  rate  of  interest  a  depository  of  the 
public  moneys  of  the  city  is  in  violation  of  this  section.  (Yar- 
nell V.  Los  Angeles,  87  Cal.  603,  25  Pac.  767.) 

It  is  the  duty  of  the  tax  collector  to  pay  all  taxes  collected 
by  him  into  the  county  treasury,  whether  or  not  the  tax  is 
valid.     (Craig  v.  Boone,  146  Cal.  718,  81  Pac.  22.) 

Deposit  of  public  moneys. 

Sec.  161/2-  All  mone^^s  belonging  to  the  state,  or  to 
any  county  or  municipality  within  this  state,  may  be 
deposited   in  any   national   bank   or   banks   within   this 


Art.  IX,  Sec.  IGi/s.     Insert  at  Page  394. 

Sec.  I6V1..  All  moneys  belonging  to  the  state,  or  to 
any  county  or  municipality  within  this  state,  may  be  de- 
posited in  any  national  bank  or  banks  within  this  state, 
or  in  any  bank  or  banks  organized  under  the  laws  of 
this  state,  in  such  manner  and  under  such  conditions  as 
may  be  provided  by  law ;  provided,  that  such  bank  or 
l)anks  in  Vv'hich  such  moneys  are  deposited  shall  furnish 
as  security  for  such  deposits,  bonds  of  the  United  States, 
or  of  this  state  or  of  any  count.v.  municipality  or  school 
district  within  this  state,  or  of  any  irrigation  district 
within  this  state,  to  be  approved  by  the  officer  or  officers 
designated  by  law,  to  an  amount  in  value  of  at  least  ten 
per  cent  in  excess  of  the  amount  of  such  deposit;  and 
provided,  that  such  bank  or  hanks  shall  pay  a  reasonable 
rate  of  interest,  not  less  than  two  per  cent  per  annum  on 
the  daily  balances  therein  deposited;  and  provided,  that 
no  deposit  shall  at  any  one  time  exceed  fifty  per  cent  of 
the  paid-up  capital  stock  of  such  depository  bank  or 
banks;  and  provided,  further,  that  no  officer  shall  deposit 
at  one  time  more  than  twenty  per  cent  of  such  public 
moneys  available  for  deposit  in  any  bank  while  there 
HV('  other  (pialified  banks  nupiesting  such  deposits. 
(AmenduKMil   adopted  November  .").  li)12.) 


395  CONSTITUTION  OF  1879.     Art.  XI,  §  16 V2 

state,  or  in  any  bank  or  banks  organized  under  the  laws 
of  this  state,  in  such  manner  and  under  such  conditions 
as  may  be  provided  by  law ;  provided,  that  such  bank  or 
banks  in  wliich  such  moneys  are  deposited  shall  furnish 
as  security  for  such  deposits,  bonds  of  the  United  States, 
or  of  this  state  or  of  any  county,  municipality  or  school 
district  within  this  state,  to  be  approved  by  the  officer  or 
officers  designated  by  law,  to  an  amount  in  value  of  at 
least  ten  per  cent  in  excess  of  the  amount  of  such  de- 
posit ;  and  provided,  that  such  bank  or  banks  shall  pay 
a  reasonable  rate  of  interest,  not  less  than  two  per  cent 
per  annum  on  the  daily  balances  therein  deposited,  and 
provided,  that  no  deposit  shall  at  any  one  time  exceed 
fifty  per  cent  of  the  paid-up  capital  stock  of  such  de- 
pository bank  or  banks,  and  provided  further,  that  no 
officer  shall  deposit  at  one  time  more  than  twenty  per 
cent  of  such  public  moneys  available  for  deposit  in  any 
bank  while  there  are  other  qualified  banlvs  requesting 
such  deposits.  (New  section  added  by  amendment 
adopted  November  6,  1906.) 

DEPOSITS  IN  BANKS.— Section  161^  of  article  11  of  the 
constitution,  addcil  by  amendment  November  6,  19()G,  providing 
for  the  deposit  in  banks  of  state,  county  and  municipal  funds, 
"in  such  manner  and  under  such  conditions  as  may  be  provided 
by  law,"  does  not  autiiorize  the  legislature  to  enact  a  law  au- 
thorizing the  officers  of  a  municipality  governed  by  a  free- 
holders' charter  to  make  such  deposits  of  municipal  moneys, 
contrary  to  the  express  provision  of  its  charter  in  that  regard. 
(Rothschild  v.  Bantel,  152  Cal.  5,  91  Pac.  803.) 


Art.  XI,  §§  17, 18     CONSTITUTION  OP  1879.  396 

Making  profit  out  of  public  funds  a  felony. 

Sec.  17.  The  making  of  profit  out  of  county,  city, 
town,  or  other  public  money,  or  using  the  same  for  any 
purpose  not  authorized  by  law,  by  any  officer  having  the 
possession  or  control  thereof,  shall  be  a  felony,  and  shall 
be  prosecuted  and  punished  as  prescribed  by  law. 

Restrictions  on  power  to  incur  indebtedness. 

Sec.  18.  No  county,  city,  town,  township,  board  of 
education,  or  school  districts,  shall  incur  any  indebted- 
ness or  liability  in  any  manner  or  for  any  purpose  ex- 
ceeding in  any  year  the  income  and  revenue  provided 
for  such  year,  without  the  assent  of  two-thirds  of  the 
qualified  electors  thereof,  voting  at  an  election  to  be  held 
for  that  purpose,  nor  unless  before  or  at  the  time  of  in- 
curring such  indebtedness  provision  shall  be  made  for 
the  collection  of  an  annual  tax  sufficient  to  pay  the  in- 
terest on  such  indebtedness  as  it  falls  due,  and  also  pro- 
vision to  constitute  a  sinking  fund  for  the  payment  of 
the  principal  thereof  on  or  before  maturity,  which  shall 
not  exceed  forty  years  from  the  time  of  contracting  the 
same;  provided,  Jiowever,  that  the  city  and  county  of 
San  Francisco  may  at  any  time  pay  the  unpaid  claims, 
with  interest  thereon  at  the  rate  of  five  per  cent  per 
annum,  for  materials  furnished  to  and  work  done  for 
said  city  and  county  during  the  forty-first,  forty-sec- 
ond, forty-third,  forty-fourth,  and  fiftieth  fiscal  years, 
and  for  unpaid  teachers'  salaries  for  the  fiftieth  fiscal 


Art.  XI,  Sec.  18.    Insert  at  Page  396. 

Sec.  18.  No  county,  city,  town,  township,  board  of 
education,  or  school  district,  shall  incur  any  indebted- 
ness or  liability  in  any  manner  or  for  any  purpose 
exceeding  in  any  year  the  income  and  revenue  pro- 
vided for  such  year,  without  the  assent  of  two  thirds 
of  the  qualified  electors  thereof,  voting  at  an  election 
to  be  held  for  that  purpose,  nor  unless  before  or  at 
the  time  of  incurring  such  indebtedness  provision 
shall  be  made  for  the  collection  of  an  annual  tax  suffi- 
cient to  pay  the  interest  on  such  indebtedness  as  it 
falls  due,  and  also  provision  to  constitute  a  sinking 
fund  for  the  payment  of  the  principal  thereof  on  or 
before  maturity,  which  shall  not  exceed  forty  years 
from  the  time  of  contracting  the  same;  provided,  how- 
ever, that  the  city  and  county  of  San  Francisco  may 
at  any  time  pay  the  unpaid  claims,  with  interest 
thereon  at  the  rate  of  five  per  cent  per  annum,  for 
materials  furnished  to  and  work  done  for  said  city 
and  county  during  the  forty-first,  forty-second,  forty- 
third,  forty-fourth,  and  fiftieth  fiscal  years,  and  for 
unpaid  teachers'  salaries  for  tbe  fiftieth  fiscal  year,  out 
of  the  income  and  I'evenue  of  any  succeeding  year  or 
years,  the  amount  to  be  paid  in  full  of  said  claims  not 
to  exceed  in  the  aggregate  the  sum  of  five  hundred 
thousand  dollars,  and  that  no  statute  of  limitations 
shall  apply  in  any  manner  to  these  claims;  and  pro- 
vided, further,  that  the  city  of  Vallejo,  of  Solano 
county,  may  pay  its  existing  indebtedness,  incurred  in 
the  construction  of  its  waterworks,  whenever  two 
thirds  of  the  electors  thereof,  voting  at  an  election 
held  for  that  purpose,   shall   so   decide,   and   that  no 


397  CONSTITUTION  OF  1879.        Art.  XI,  §  18 

year,  out  of  the  income  and  revenue  of  any  succeeding 
year  or  years,  the  amount  to  be  paid  in  full  of  said 
claims  not  to  exceed  in  the  aggregate  the  sum  of  five 
hundred  thousand  dollars,  and  that  no  statute  of  limi- 
tations shall  apply  in  any  manner  to  these  claims ;  and 
provided  further,  that  the  city  of  Vallejo,  of  Solano 
county,  may  pay  its  existing  indebtedness,  incurred  in 
the  construction  of  its  waterworks,  whenever  two- 
thirds  of  the  electors  thereof,  voting  at  an  election  held 
for  that  purpose,  shall  so  decide,  and  that  no  statute 
of  limitations  shall  apply  in  any  manner.  Any  in- 
debtedness or  liability  incurred  contrary  to  this  provi- 
sion, with  the  exceptions  hereinbefore  recited,  shall  be 
void.     (Amendment  adopted  November  6,  1900.) 

By  amendment  adopted  November  6,  1906,  the  follow- 
ing was  added  at  the  end  of  this  section : 

The  city  and  county  of  San  Francisco,  the  city  of 
San  Jose  and  the  town  of  Santa  Clara  may  make  pro- 
vision for  a  sinking  fund,  to  pay  the  principal  of  any 
indebtedness  incurred,  or  to  be  hereafter  incurred  by 
it,  to  commence  at  a  time  after  the  incurring  of  such 
indebtedness  of  no  more  than  a  period  of  one-fourth 
of  the  time  of  maturity  of  such  indebtedness,  which  shall 
not  exceed  seventy-five  years  from  the  time  of  con- 
tracting the  same.  Any  indebtedness  incurred  con- 
trary to  any  provision  of  this  section  shall  be  void. 


Art.  XI,  §  18       CONSTITUTION  OP  1879.  398 

[AMENDMENT  OF  1892.]  ■ 
Sec.  18.  No  county,  city,  town,  township,  board  of  educa- 
tion or  school  district,  shall  incur  any  indebtedness  or  liability, 
in  any  manner,  or  for  any  purpose,  exceeding  in  any  year  the 
income  and  revenue  provided  for  it  for  such  year  without  the 
assent  of  two-thirds  of  the  qualified  electors  thereof  voting  at 
an  election  to  be  held  for  that  purpose,  nor  unless,  before  or  at 
the  time  of  incurring  such  indebtedness,  provision  shall  be  made 
for  the  collection  of  an  annual  tax  sufficient  to  pay  the  interest 
on  such  indebtedness  as  it  falls  due,  and  also  provision  to  con- 
stitute a  sinking  fund  for  the  payment  of  the  principal  thereol 
on  or  before  maturity,  which  shall  not  exceed  forty  years  from 
the  time  of  contracting  the  same.  Any  indebtedness  or  lia- 
bility incurred  contrary  to  this  provision  shall  be  void.  (Ratifi- 
cation declared  December  30,  1892.) 

[ORIGINAL  SECTION.] 
Sec.  18.  No  county,  city,  town,  township,  board  of  education, 
or  school  district,  shall  incur  any  indebtedness  or  liability  in  any 
manner  or  for  any  purpose,  exceeding  in  any  year  the  income 
and  revenue  provided  for  it  for  such  year,  without  the  assent 
of  two-thirds  of  the  qualified  electors  thereof  voting  at  an  elec- 
tion to  be  held  for  that  purpose,  nor  unless,  before  or  at  the 
time  of  incurring  such  indebtedness,  provision  shall  be  made 
for  the  collection  of  an  annual  tax  suiBcient  to  pay  the  interest 
on  such  indebtedness  as  it  falls  due,  and  also  to  constitute  a 
sinking  fund  for  the  payment  of  the  principal  thereof  within 
twenty  years  from  the  time  of  contracting  the  same.  Any  in- 
debtedness or  liability  incurred  contrary  to  this  provision  shall 
be  void. 

MUNICIPAL  INDEBTEDNESS.— This  provision  is  to  be 
naturally  and  reasonably  construed  as  providing  that  all  legiti- 
mate indebtedness  of  the  municipality  must  not  exceed  all  tho 


390  CONSTITUTION  OF  1879.        Art.  XI,  §  IS 

revenues  and  income  provided  for  that  year.  (Higgins  v.  San 
Diego,  131  Cal.  294,  63  Pac.  470.) 

It  refers  only  to  the  acts  or  contracts  of  the  city  and  not  to 
liabilities  which  the  law  may  cast  upon  her.  (MeCraken  v, 
San  Francisco,  16  Cal.  591;  Lewis  v.  Widber,  99  Cal.  412,  33  Pac. 
1128.) 

It  does  not  apply  to  the  payment  of  the  salary  of  a  public 
ofl&cer,  whose  office  has  been  created  and  salary  fixed  by  law. 
(Lewis  v.  Widber,  99  Cal.  412,  33  Pac.  1128;  Harrison  v.  Horton, 
5  Cal.  App.  415,  90  Pac.  716.) 

It  does  not  apply  to  the  obligation  of  a  city  to  return  money 
which  she  has  received  by  mistake  or  without  authority  of  law. 
(Argenti  v.  San  Francisco,  16  Cal.  255.) 

It  does  not  apply  to  a  board  of  trustees  of  a  free  public 
library  of  a  city.  (Eobertson  v.  Library  Trustees,  136  Cal. 
403,  69  Pac.  88.) 

Under  this  section  no  indebtedness  or  liability  can  be  in- 
curred by  a  municipality  (except  in  the  manner  therein  pro- 
vided), exceeding  in  any  year  the  income  and  revenue  actually 
received  by  it.  Each  year's  income  and  revenue  must  pay  each 
year's  indebtedness  and  liability,  and  no  indebtedness  or  lia- 
bility incurred  in  any  one  year  can  be  paid  out  of  the  income 
of  any  future  year.  (San  Francisco  Gas  Co.  v.  Brickwedel, 
62  Cal.  641;  Schwartz  v.  Wil?on,  75  Cal.  502,  17  Pac.  449; 
Smith  V.  Broderick,  107  Cal.  644,  48  Am.  St.  Rep.  167,  40  Pac. 
1033;  Weaver  v.  San  Francisco,  111  Cal.  319,  43  Pac.  972; 
Montague  v.  English,  119  Cal.  22.5,  51  Pac.  327.) 

The  fact  that  the  obligation  is  reduced  to  judgment  and  a 
special  tax  levied  and  collected  for  its  payment  does  not  alter 
the  case.  (Smith  v.  Broderick,  107  Cal.  644,  48  Am.  St.  Kep. 
167,  40  Pac.  1033;  Goldsmith  v.  San  Francisco,  115  Cal.  36,  46 
Pac.  816.) 

A  creditor  of  the  city  does  not  acquire  a  right  to  be  paid  out 
of  the  income  for  any  subsequent  year  on  the  ground  that  the 
funds  were  depleted  by  a  large  excess  in  the  expenses  of  a  gen- 
eral election  over  the  estimate  made  by  the  supervisors. 
(Weaver  v.  San  Francisco,  111  Cal.  319,  43  Pac.  972.) 

The  income  provided  for  a  county  during  a  given  fiscal  year 
must  be  applied  to  the  payment  of  the  county  indebtedness 
incurred  during  such  year,  before  the  payment  of  any  indebted- 


Art.  XI,  §  18       CONSTITUTION  OF  1879.  400 

ness  of  a  preceding  year  can  be  made  therefrom.  (Shaw  v. 
Statler,  74  Cal.  258,  15  Pac.  833.) 

Moneys  of  a  previous  fiscal  year,  remaining  in.  the  treasury 
in  a  subsequent  year,  are  not  part  of  the  fund  of  the  subse- 
quent year,  but  thoy  remain  a  part  of  the  fund  of  the  previous 
year,  and  a  claimant  of  that  fund  cannot  be  robbed  of  his  due 
by  a  technical  transfer.  (Bilby  v.  McKenzie,  112  Cal.  143,  44 
Pac.  341.) 

Where  the  revenue  of  one  fiscal  year  has  been  exhausted,  the 
city  officers  cannot,  for  the  purpose  of  providing  for  the  present 
needs  of  the  municipality  during  the  remainder  of  the  year, 
incur  debts  to  be  met  in  a  subsequent  year,  except  in  the  man- 
ner provided  in  this  section.  (Bradford  v.  San  Francisco,  112 
Cal.  537,  44  Pac.  912.) 

This  section  does  not  prohibit  the  auditing  of  demands  for 
salaries,  although  the  aggregate  amount  of  the  salaries  for  a 
given  year  would  exceed  the  amount  limited  by  the  board  of 
supervisors  for  the  payment  of  such  salaries  during  that  year. 
(Welch  V.  Strother,  74  Cal.  413,  16  Pac.  22.) 

This  section  does  not  apply  to  irrigation  districts.  (In  re 
Madera  Irr.  Dist.,  92  Cal.  296,  27  Am.  St.  Kep.  106,  28  Pac.  272, 
14  L.  E.  A.  755.) 

A  contract  for  future  annual  payments  fpr  a  sewer  farm 
is  not  a  present  liability.  (McBean  v.  Fresno,  112  Cal.  159,  53 
Am.  St.  Eep.  191,  44  Pac.  358,  31  L.  E.  A.  794;  Smilie  v.  Fresno, 

112  Cal.  311,  44  Pac.  556;  Higgins  v.  San  Diego  Water  Co.,  118 
Cal.  524,  45  Pac.  824,  50  Pac.  670.) 

Sections  4445  to  4449  of  the  Political  Code  are  not  in  con- 
flict with  this  section,  since  they  only  provide  for  a  change 
in  the  form  of  the  evidence  of  the  indebtedness,  and  not  for 
the  creation  of  new  indebtedness.  (Los  Angeles  v.  Teed,  112 
Cal.  319,  44  Pac.  580.) 

An  action  by  a  taxpayer  will  lie  to  enjoin  the  officers  of  a 
city  from  incurring  any  indebtedness  in  violation  of  this  provi- 
sion.    (Bradford  v.  San  Francisco,  112  Cal.  537,  44  Pac.  912.) 

A  claim  arising  under  a  contract  for  the  burial  of  the  indigent 
dead  is  within  this  provision.     (Pacific  Undertakers  v.  Widber, 

113  Cal.  201,  45  Pac.  273.) 

The  fact  that  the  indebtedness  is  incurred  for  an  urgent 
necessity  will  not  take  the  case  out  of  this  provision,  (Buck 
V.  Eureka,  119  Cal.  44,  50  Pac.  1065.) 


401  CONSTITUTION  OF  1879.        Art.  XI,  §  18 

Notwitlistancling  this  provision,  a  .iudgment  against  a  munici- 
pality should  be  in  form  a  general  judgment,  although  it  and  the 
liability  on  which  it  is  based  can  only  be  paid  out  of  the 
municipal  revenues  of  the  fiscal  year  in  which  the  liability  was 
incurred.     (Buck  v.  Eureka,  119  Cal.  44,  50  Pac.  1065.) 

A  judgment  upon  a  claim  against  a  city,  although  payable 
only  out  of  the  funds  of  a  particular  fiscal  year,  should  be  gen- 
eral in  form  and  should  not  direct  out  of  what  funds  it  should 
be  paid.  (Fresno  etc.  Co.  v.  McKenzie,  135  Cal.  497,  67  Pac. 
900.') 

A  sum  payable  upon  a  contingency  is  not  a  debt  within  the 
meaning  of  this  section,  and  cannot  become  such  until  the 
contingency  happens.  (Doland  v.  Clark,  143  Cal.  176,  76  Pac. 
958.) 

A  contract  to  continue  for  a  series  of  years,  and  providing 
for  payments  thereunder  at  different  times,  is  not  in  violation 
of  this  provision.      (Doland  v.  Clark,  143  Cal.  176,  76  Pac.  958.) 

An  implied  liujility  of  a  city  is  within  the  prohibition  of  this 
section.     (Buck  v.  Eureka,  124  Cal.  61,  56  Pac.  612.) 

An  implied  liability  for  services  rendered  by  an  attorney  of 
the  city  is  incurred  when,  from  time  to  time,  the  services  were 
fully  rendered,  and  the  city,  with  knowledge,  accepted  the  bene- 
fit of  them.     (Buck  v.  Eureka,  124  Cal.  61,  56  Pac.  612.) 

In  an  action  concerning  the  validity  of  a  municipal  obligation, 
it  is  error  to  reject  evidence  of  the  condition  of  the  treasury  at 
the  time  it  was  incurred.  (Buck  v.  Eureka,  124  Cal.  61,  56  Pac. 
612.) 

Although  there  may  be  no  money  in  the  fund  out  of  which  a 
liability  is  payable  at  the  time  it  is  created,  still,  if  at  the  end 
of  the  fiscal  year  there  is  money  in  such  fund,  it  may  be  applied 
to  such  liability,  (lliggins  v.  San  Diego,  131  Cal.  294,  63  Pac. 
470.) 

This  section  only  requires  the  assent  of  two-thirds  of  such 
electors  as  vote  on  the  proposition  of  incurring  the  indebtedness, 
and  not  two-thirds  of  tliose  voting  at  the  election.  (Ilowland  v. 
Supervisors,  109  Cal.  152,  41  Pac.  864.) 

The  fact  that  the  election  is  held  at  the  same  time  and  place 
as  the  general  election  does  not  affect  the  character  of  the  elec- 
tion.    (Rowland  v.  Supervisors,  109  Cal.  152,  41  Pac.  864.) 
Constitution — 26 


Art.  XI,  §  18       CONSTITUTION  OF  187D.  402 

This  section  docs  not  require  that  at  the  time  of  the  sale  or 
issuance  of  the  bonds,  or  th'^  inciuring  of  the  bonded  indebted- 
ness, a  sinking  fund  or  interest  tax  be  levied,  but  only  that  pro- 
vision shall  be  made  for  their  collection.  (Hovvland  v.  Super- 
visors, 109  Cal.  1.52,  41  Pac.  864.) 

Where  the  law  provides  that  "at  least  two-tliirds  of  the  elec- 
tors voting  at  such  special  election  shall  be  necessary,"  two- 
thirds  of  all  persons  voting  at  the  election,  and  not  merely 
two-thirds  of  those  voting  upon  the  proposition,  are  necessary. 
(Law  V.  San  Francisco,  144  Cal.  384,  77  Pac.  1014.) 

An  order  by  the  supervisors  annexing  a  school  district  to  a 
high  school  district  upon  terms  of  agreement  which  essentially 
involve  the  assumption  by  the  school  district  of  a  pro  rata  part 
of  the  bonded  debt  of  the  high  school  district,  without  the  vote 
herein  required,  is  void.  (People  v.  Hanford  High  School  Dis- 
trict, 148  Cal.  705,  84  Pac.  193.) 

The  objection  that  the  expense  of  an  election  under  the  initia- 
tive or  referendum  law  might  exceed  the  indebtedness  permitted 
by  this  section  cannot  prevail  to  make  such  law  unconstitutional. 
(In  re  Pfahler,  150  Cal.  71,  88  Pac.  270,  11  Ann.  Cas.  911.) 

A  board  of  supervisors  cannot  during  the  fiscal  year  allow 
claims  against  the  indigent  fund  in  excess  of  the  revenues  pro- 
vided for  that  year,  and  then,  by  a  fictitious  sale  of  county  prop- 
erty, and  the  repurchase  thereof  after  the  commencement  of  the 
next  fiscal  year,  draw  a  warrant  on  the  next  year's  fund  to  pay 
the  indebtedness  incurred  during  the  previous  year.  (County 
of  Tehama  v.  Sisson,  152  Cal.  167,  92  Pac.  64.) 

The  object  of  this  section  was  to  insure  that  at  the  time  of 
the  general  tax  levy  each  year  provision  would  be  made  for  such 
money  as  would  be  necessary  to  pay  interest  and  principal  fall- 
ing due  before  the  time  of  the  next  general  tax  levy  and  to 
make  up  the  necessary  sinking  fund.  (Johnson  v.  Williams,  153 
Cal.  3G8,  95  Pac.  655.) 

CoujTts  of  equity  have  power  to  protect  and  enforce  the  will 
of  the  people  in  the  issuance  of  bonds.  (Cerini  v.  De  Lone  7 
Cal.  App.  398,  94  Pac.  582.) 

The  amendment  allowing  the  city  and  county  of  San  Fran- 
cisco to  pay  certain  claims  against  it  was  permissive  only  and 
not  compulsory,  (Weaver  v.  San  Francisco,  146  Cal.  728,  81 
Pac.   119.) 

As  to  the  sufficiency  of  the  notice  of  the  election,  see  Los 
Angeles  v.  Teed,  112  Cal.  319,  44  Pac.  580. 


403  CONSTITUTION  OF  1879.       Art.  XI,  §  19 

Municipal  o\viiership  of  public  utilities. 

Sec.  19.  Any  mimieipal  corporation  may  establish 
and  operate  public  works  for  supplying  its  inhabitants 
with  light,  water,  power,  heat,  transportation,  telephone 
service  or  other  means  of  communication.  Such  works 
may  be  acquired  by  original  construction  or  by  the  pur- 
chase of  existing  works,  including  their  franchises,  or 
both.  Persons  or  corporations  may  establish  and  oper- 
ate works  for  supplying  the  inhabitants  with  such  ser- 
vices upon  such  conditions  and  under  such  regulations 
as  the  municipality  may  prescribe  under  its  organic 
law,  on  condition  that  the  municipal  government  shall 
have  the  right  to  regulate  the  charges  thereof.  A  munic- 
ipal corporation  may  furnish  such  services  to  inhabit- 
ants outside  its  boundaries;  provided  that  it  shall  not 
furnish  any  service  to  the  inhabitants  of  any  other  mu- 
nicipality owning  or  operating  works  supplying  the 
same  service  to  such  inhabitants,  without  the  consent 
of  such  other  municipality,  expressed  by  ordinance. 
(Amendment  approved  October  10,  1911.) 

[AMENDMENT  OF  1885.] 
Sec.  19.  In  any  city  where  there  are  no  public  works  owned 
and  controlled  by  the  municipality  for  supplying  the  same  with 
water  or  artificial  light,  any  individual,  or  any  company  duly 
incorporated  for  such  purpose,  under  and  by  authority  of  the 
laws  of' this  state,  shall,  under  the  direction  of  the  superintend- 
ent of  streets,  or  other  officer  in  control  thereof,  and  under  such 
general  regulations  as  the  municipality  may  prescribe,  for  dam- 
ages and  indemnity  for   damages,  have  the  privilege   of  using 


Art.  XI,  §  19       CONSTITUTION  OF  1879.  404 

tlie  public  streets  and  thoroughfares  thereof,  and  of  laying  down 
pipes  and  conduits  therein,  and  connections  therewith,  so  far  as 
may  be  necessary  for  introducing  into  and  supplying  such  city 
and  its  inhabitants  either  with  gaslight,  or  other  illuminating 
light,  or  with  fresh  water  for  domestic  and  all  other  purposes, 
upon  the  condition  that  the  municipal  government  shall  have  the 
right  to  regulate  the  charges  thereof.  (Ratification  declared 
February  12,  1885.) 

[ORIGINAL  SECTION.] 
Sec.  19.  No  public  work  or  improvement  of  any  description 
whatsoever  shall  be  done  or  made,  in  any  city,  in,  upon  or  about 
the  streets  thereof,  or  otherwise,  the  cost  and  expense  of  which 
is  made  chargeable  or  may  be  assessed  upon  private  property 
by  special  assessment,  unless  an  estimate  of  such  cost  and  ex- 
pense shall  be  made,  and  an  assessment,  in  proportion  to  benefits, 
on  the  property  to  be  affected  or  benefited,  shall  be  levied,  col- 
lected, and  paid  into  the  city  treasury  before  such  work  or  im- 
provement shall  be  commenced,  or  any  contract  for  letting  or 
doing  the  same  authorized  or  performed.  In  any  city  where 
there  are  no  public  works  owned  and  controlled  by  the  munici- 
pality, for  supplying  the  same  with  water  or  artificial  light,  any 
individual,  or  any  company  duly  incorporated  for  such  pur- 
pose under  and  by  authority  of  the  laws  of  this  state,  shall, 
under  the  direction  of  the  superintendent  of  streets,  or  other 
officer  in  control  thereof,  and  under  such  general  regulations  as 
the  municipality  may  prescribe  for  damages  and  indemnity  for 
damages,  have  the  privilege  of  using  the  public  streets  and 
thoroughfares  thereof,  and  of  laying  down  pipes  and  conduits 
therein,  and  connections  therewith,  so  far  as  may  be  necessary 
for  introducing  into  and  supplying  such  city  and  its  inhabitants 
either  with  gaslight  or  other  illuminating  light,  or  with  fresh 
water  for  domestic  and  all  other  purposes,  upon  the  condition 


405  CONSTITUTION  OF  1879.        Art.  XI,  §  19 

that  the  municipal  government  shall  have  the  right  to  regulate 
the  charges  thereof. 

WATER  AND  LIGHT. — The  word  "city,"  used  in  this  section, 
includes  "town."  (Pereria  v.  Wallace,  129  Cal.  397,  62  Pae.  61; 
People  V.  Stephens,  62  Cal.  209.) 

The  provisions  of  this  section  are  self-executing.  (Denninger 
V.  Recorder's  Court,  145  Cal.  629,  79  Pac.  300;  Boca  etc.  R.  R. 
V.  Sierra  Valley  R.  R.,  2  Cal.  App.  546,  84  Pac.  298.) 

Nothing  is  required  to  make  the  power  granted  by  this  pro- 
vision completely  operative  except  a  law  for  the  organization 
of  municipal  corporations  and  prescribing  a  mode  of  exercising 
legislative  power,  (Denninger  v.  Recorder's  Court,  145  Cal.  629, 
79  Pac.  360.) 

The  power  conferred  by  this  section  is  not  independent  upon 
action  by  the  legislature  under  section  33  of  article  4.  (Den- 
ninger V.  Recorder's  Court,  145  Cal.  029,  79  Pac.  300.) 

The  franchise  to  lay  pipes  and  conduits  or  erect  poles  is  real 
estate  and  is  inseparably  annexed  to  the  soil,  and  has  a  local 
situation  in  the  place  where  the  right  is  exercised.  (Stockton 
Gas  etc.  Co.  v.  San  Joaquin  County,  148  Cal.  313,  83  Pac.  54, 
5  L.  R.  A.,  N.  S.,  174,  7  Ann.  Cas.  511.) 

The  fact  that  the  gas  which  furnishes  light  also  serves  for 
cooking  and  heating  does  not  prevent  the  legislative  authori- 
ties from  fixing  the  rate  thereof.  (Denninger  v.  Recorder's 
Court,  145  Cal.  638,  79  Pac.  364.) 

The  provision  of  the  act  of  1858,  requiring  water  companies 
to  furnish  water  free  of  charge  to  cities  and  counties,  was  abro- 
gated by  this  section.  (Spring  Valley  W,  W.  v.  San  Francisco, 
61  Cal.  18.) 

The  board  of  supervisors  has  no  power  to  delegate  to  a  com- 
mission the  power  to  fix  the  rates  to  be  paid  by  the  county  for 
gas.  But  where  the  board  afterward  ratifies  the  rates  fixed  by 
the  commission,  the  final  determination  with  respect  to  the  rates 
is  exercised  by  the  board,  and  is  valid.  (San  Francisco  Gas  Co. 
V.  Dunn,  62  Cal.  580.) 

This  section  does  not  deprive  the  right  to  collect  rates  for 
water  of  its  character  of  a  franchise.  (Spring  Valley  W.  W.  v. 
Schottler,  02  Cal.  69.) 

Although  a  contract  fixing  the  price  of  gas  may  be  void,  still 
if  the  gas  is  actually  furnished  to  and  used  by  the  municipality. 


Art.  XI,  §  19       CONSTITUTION  OF  1879.  406 

the  board  may  allow  for  its  payment  such  sum  as  it  is  reason- 
ably worth.     (San  Francisco  Gas  Co.  v.  Dunn,  .62  Cal.  580.) 

In  the  absence  of  an  express  limitation,  a  contract  by  the 
board  as  to  rates  for  the  term  of  five  years  will  not  be  held  un- 
reasonable.    (San  Francisco  Gas  Co.  v.  Dunn,  62  Cal.  580.) 

The  question  of  what  is  a  reasonable  rate  is  a  question  of 
fact.     (Redlands  etc.  Co.  v.  Redlands,  121  Cal.  312,  53  Pac.  791.) 

The  water  company  is  not  entitled  to  be  reimbursed  from  the 
income  derived  from  the  rates  for  interest  upon  its  indebtedness, 
nor  for  depreciation  of  its  plant,  aside  from  the  amount  requisite 
for  its  maintenance  and  repairs  during  the  year.  (Redlands  etc. 
Co.  V.  Redlands,  121  Cal.  312,  53  Pac.  791.) 

The  bonded  or  other  indebtedness  of  the  company  is  not  to  be 
considered;  but  the  fair  value  of  the  property  which  is  neces- 
sarily used  in  furnishing  the  water  is  the  basis  upon  which  to 
determine  the  amount  of  revenue,  which  should  be  the  same 
whether  the  works  are  acquired  or  constructed  by  the  company 
with  its  own  resources,  or  with  money  borrowed  from  others. 
(Redlands  etc.  Co.  v.  Redlands,  121  Cal.  365,  53  Pac.  843.) 

The  company  has  no  absolute  right  to  receive  a  given  per  cent 
on  its  capital  stock.  (Redlands  etc.  Co.  v.  Redlands,  121  Cal. 
365,  53  Pac.  843.) 

The  rights  of  the  public,  as  well  as  those  of  the  stockholders, 
are  to  be  considered;  and  the  public  cannot  be  subjected  to  un- 
reasonable rates  in  order  simply  that  stockholders  may  have 
dividends.  The  company  has  the  right  to  receive  only  what, 
under  all  the  circumstances,  is  such  compensation  as  will  be  just 
to  it  and  to  the  public.  (Redlands  etc.  Co.  v.  Redlands,  121  Cal. 
36.5,  53  Pac.  843.) 

An  ordinance  requiring  a  special  permission  to  be  obtained 
from  the  board  of  supervisors,  before  streets  can  be  obstructed, 
is  reasonable.  (Mutual  Electric  etc.  Co.  v.  Ashworth,  118  Cal.  1, 
50  Pac.  10.) 

Under  this  section  the  city  may  require  special  permission 
from  the  city  before  poles  can  be  erected  in  the  streets  by  an 
electric  light  company;  and  the  mere  fact  that  the  permission 
is  granted  to  one  company  and  unjustly  refused  to  another  will 
not  entitle  the  latter  to  enjoin  the  city  authorities  from  inter- 
fering with  the  erection  of  such  poles — the  proper  remedy  being 
to  comjjel  the  granting  of  the  permit  by  mandamus.  (Mutual 
Electric  etc.  Co.  v.  Ashworth,  118  Cal.  1,  50  Pac.  10.) 


4.07  CONSTITUTION  OF  1879.       Art.  XI,  §  19 

By  this  section  the  operation  of  gas'.vorks  is  recognized  as  a 
lawful  business.      (In  re  Smith,  143  Cal.  3C8,  77  Pac.  ISO.) 

A  gas  company  does  not  forfeit  its  franchise  by  supplying  gas 
for  cooking  and  heating  as  Avell  as  for  lighting  purposes  which 
does  not  subject  the  streets  to  any  additional  burden.  (People 
V.  Los  Angeles  etc.  Gas  Co.,  150  Cal.  557,  89  Pac.  108.) 

This  section  only  applies  to  cities  in  which  there  are  no  public 
works  owned  and  controlled  by  the  city  for  supplying  the  same 
with  water.  (Colegrove  W.  Co.  v.  Hollywood,  151  Cal.  425,  90 
Pac.  1053,  13  L.  R.  A.,  N.  S.,  901.) 

A  municipal  corporation  upon  which  has  devolved  the  duty  of 
supplying  water  to  another  nuuiicipality  is  a  "corporation  duly 
incorporated  for  such  purpose"  within  the  meaning  of  the  consti- 
tution. (South  Pasadena  v.  Pasadena  Land  Co.,  152  Cal.  579, 
93  Pac.  490.) 

The  power  of  a  municipality  to  acquire  and  control  public 
utilitias  is  recognized  by  the  constitution  in  the  language  "in 
any  city  where  there  are  no  public  works  owned  and  controlled 
by  the  municipalitj'  for  supplying  the  same  with  water  or  arti- 
ficial light."  (Plntt  V.  City  and  County  of  San  Francisco,  158 
Cal.  74,  110  Pac.  304.) 

The  mere  fact  that  a  regulation  will  work  irreparable  injury 
to  the  company  and  will  work  inconvenience  and  deprival  of 
use  in  the  manner  theretofore  enjoyed  by  the  inhabitants  of  the 
city  sufficiently  to  show  an  arbitrary  or  unreasonable  exercise 
of  power.  (Merced  Falls  Gas  etc.  Co.  v.  Turner,  2  Cal.  App. 
720,  84  Pac.  239.) 

An  electric  light  company  by  erecting  poles  by  permission  of 
the  municipal  authorities  does  not  obtain  an  absolute,  inde- 
feasible right  to  have  the  poles  remain  at  the  particular  spot 
for  all  time,  and  the  city  authorities  have  the  power  by  reason- 
able regulations  to  compel  the  company  to  change  their  location. 
(Merced  Falls  Gas  etc.  Co.  v.  Turner,  2  Cal.  Apx?.  720,  84  Pac. 
239.) 

This  section  does  not  curtail  the  power  of  the  municipality 
in  making  needful  and  reasonable  regulations  touching  the  use 
of  the  streets,  but  the  municipality  will  not  be  permitted  to  en- 
force regulations  which  are  tantamount  to  a  denial  of  the  right, 
or  are  arbitrary,  capricious,  unreasonable,  or  prohibitory  in 
their  nature  or  effect.  (Merced  Falls  Gas  etc.  Co.  v.  Turner,  2 
Cal.  App.  720,  84  Pac.  239.) 


Art.  XI,  §  19       CONSTITUTION  OF  1879.  408 

An  ordinance  requiring  persons  who  desire  to  lay  pipes  in  the 
streets  to  make  a  verified  application  for  a  permit  from  the 
superintendent  of  streets  is  invalid  and  is  not  a  regulation  for 
"damages  and  indemnity  for  damages."  (In  re  Johnston,  137 
Cal.  115,  69  Pac.  973.) 

A  statute  requiring  municipalities  to  sell  franchises  for  lay- 
ing pipes,  etc.,  to  the  highest  bidder  is  void.  (Pereria  v.  Wal- 
lace, 129  Cal.  397,  62  Pac.  61.) 

See,  further,  as  to  water  rates,  note  to  section  33,  article  4, 
and  section  1,  article  14. 

STREET  ASSESSMENTS.— The  "front-foot"  method  of  as- 
sessment is  valid.  (Iladley  v.  Dague,  130  Cal.  207,  62  Pac.  500; 
Cohen  v.  Alameda,  124  Cal.  504,  57  Pac.  377;  Chambers  v.  Sat- 
terlee,  40  Cal.  497;  Emery  v.  San  Francisco  Gas  Co.,  28-  Cal. 
345;  Emery  v.  Bradford,  29  Cal.  75;  Taylor  v.  Palmer,  31  Cal. 
240;  Whiting  v.  Quackenbush,  54  Cal.  306;  Whiting  v.  Town- 
send,  57  Cal.  515;  Lent  v.  Tillson,  72  Cal.  404,  14  Pac.  71;  Jen- 
nings V.  Le  Breton,  80  Cal.  8,  21  Pac.  1127;  San  Francisco  Pav. 
Co.  V.  Bates,  134  Cal.  39,  66  Pac.  2;  Banaz  v.  Smith,  133  Cal.  102, 
65  Pac.  309.) 

An  assessment  for  improving  a  street  is  a  tax,  and  must  be 
levied  with  equality  and  uniformity.  (Whiting  v.  Quackenbush, 
54  Cal.  306.) 

A  contract  for  a  street  improvement,  made  before  the  new 
constitution  went  into  effect,  is  not  affected  by  its  provisions, 
and  the  granting  of  an  extension  of  time  for  the  performance  of 
the  same  is  not  a  new  contract.  (Oakland  Pav.  Co.  v.  Barstow, 
79  Cal.  45,  21  Pac.  544;  Ede  v.  Cogswell,  79  Cal.  278,  21  Pac. 
767;  Ede  v.  Knight,  93  Cal.  159,  28  Pac.  860.) 

The  provisions  of  this  section  in  its  original  form  were  self- 
executing,  and  the  provisions  of  the  act  of  1872,  relating  to 
street  improvements  in  San  Francisco,  and  authorizing  the  super- 
intendent of  streets  to  execute  contracts  for  such  improvements 
in  advance  of  the  levy  and  collection  of  the  assessment,  were 
inconsistent  with  it,  and  ceased  to  be  operative  when  it  went 
into  effect.  (McDonald  v.  Patterson,  54  Cal.  245;  Donahue  v. 
Graham,  61  Cal.  276.) 

The  act  of  1863,  providing  for  the  widening  of  streets  in  San 
Francisco  by  agreement  with  the  owners,  was  not  in  conflict  with 
this  section.  (San  Francisco  v.  Kiernan,  98  Cal.  614,  33  Pac. 
720.) 


409  CONSTITUTION  OF  1879.       Art.  XI,  §  19 

The  provision  of  the  charter  of  San  Francisco  for  making  a 
contract  for  street  work  before  an  assessment  had  been  levied 
and  collected  was  repealed  by  this  section,  and  was  not  revived 
by  the  constitutional  amendment  dispensing  with  the  necessity 
of  such  levy  and  collection.      (Thomason  v.  Ruggles,  69  Cal.  465, 

11  Pac.  20;  Thomason  v.  Ashwovth,  73  Cal.  73,  14  Pac.  615.) 
The  air.cndment  to  this  section  in  1885  was  legally  adopted. 

(Oakland  Pav.  Co.  v.  Tompkins,  72.  Cal.  5,  1  Am.  St.  Rep.  17, 

12  Pac.  801;  Thomason  v.  Ashworth,  73  Cal.  73,  14  Pac.  615; 
People  V.  Strother,  67  Cal.  624,  8  Pac.  383;  Sacramento  P.  Co. 
V.  Anderson,  1  Cal.  App.  672,  82  Pac.  1069.  But  see  Oakland 
Pav.  Co.  V.  Hilton,  69  Cal.  479,  11  Pac.  3.) 


CONSTITUTION   OP   1879.  410 

ARTICLE  XII. 

CORPORATIONS. 

Corporations  to  be  formed  under  general  laws. 

Dues  to  be  secured  by  individual  liability,  etc. 

Stockholders  to  be  individually  liable. 

Corporations   construed. 

Banking  prohibited. 

Existing  charters,  when  invalid. 

Charters  not  to  be  extended,  nor  forfeiture  remitted. 

All  franchises  subject  to  the  right  of  eminent  domain. 

Restrictions  on  powers  of  corporations. 

Liabilities  of  franchise  under  lease  or  grant. 

Corporation  stock,  restriction  on  issue  of. 

Election  of  directors^ — -Cumulative  or  distributive  votes. 

State   not   to   loan   its   credit   nor   subscribe   to   stock   of 
corporations. 
§  14.     Corporations   to  have   office   for   transaction   of   business 

in  stocks. 
§  15.     Foreign  corporations,  conditions. 
§   16.     Corporations,  where  to  be  sued. 

§   17.     Transportation  companies,  rights  and  liabilities  of. 
§   18.     Officers  of  corporations,  restriction  as  to  interests. 
§  19.     Free  passes  on  railroads  prohibited  to  state  officials. 
§  20.     Fares  and  freights  to  be  regulated  by  government. 
§  21.     Discrimination  in  charges  by  carriers  forbidden. 
§  22.     Railroad  commission,  organization  of. 
§  23.     Railroad  commission,  regulation  of  public  utilities. 
§  2i.     Legislature  to  pass  laws  to  enforce  this  article. 


§ 

1. 

§ 

2 

§ 

3. 

§ 

4, 

§ 

5, 

§ 

6, 

§ 

7, 

§ 

8. 

§ 

9, 

§ 

10, 

§ 

11. 

§ 

12, 

§ 

13, 

411  CONSTITUTION  OP  1879.        Art.  XII,  §  1 

Corporations  to  be  formed  under  general  laws. 

Sec.  1.  Corporations  may  be  formed  under  general 
laws,  but  shall  not  be  created  by  special  act.  All  laws 
now  in  force  in  this  state  concerning  corporations,  and 
all  laws  that  may  be  hereafter  passed  pursuant  to  this 
section,  may  be  altered  from  time  to  time  or  repealed. 

CORPORATIONS— Wliat  are.— A  levee  district  is  not  a  pri- 
vate corporation,  neither  is  it  a  municipal  corporation,  but  it 
belongs  to  a  class  by  itself,  the  creation,  organization,  and  con- 
trol of  which  is  not  limited  by  the  constitution.  (People  v. 
Levee  Dist.  No.  6,  131  Cal.  30,  63  Pac.  676.) 

Prior  to  the  new  constitution,  a  reclamation  district  was  held 
to  be  a  public  corporation,  which  could  be  created  by  special 
act.  (Reclamation  Dist.  Ko.  124  v.  Gray,  95  Cal.  601,  30  Pac. 
779.) 

Irrigation  districts,  with  respect  to  their  public  functions,  are 
to  be  classed  with  public  corporations;  but  with  regard  to  the 
private  rights  of  the  individual  land  owners,  they  are  to  be 
classed  as  private  corporations.  (Merchants'  Bank  v.  Escondido 
Irr.  Dist.,  144  Cal.  329,  77  Pac.  937.) 

This  section  refers  to  private  corporations,  and  it  has  no  ap- 
plication to  the  creation  of  public  corporations  under  the  control 
and  government  of  the  state,  such  as  state  hospitals.  (Napa 
State  Hospital  v.  Dasso,  153  Cal.  698,  96  Pac.  355,  15  Ann.  Cas. 
910.) 

A  district  agricultural  association  is  a  public  agency  of  the 
state,  and  is  a  public  corporation.  (People  v.  San  Joaquin 
Valley  Agricultural  Assn.,  151  Cal.  797,  91  Pac.  740.) 

Reclamation  districts  do  not  come  within  the  purview  of  this 
section.  (Reclamation  Dist.  No.  70  v.  Sherman,  11  Cal.  App.  399, 
105  Pac.  277.) 

Creation  of. — ^The  legislature  cannot  confer  upon  corporations 
any  powers  or  grant  them  any  privileges  by  special  act.  (San 
Francisco  v.  Spring  Valley  W.  W.,  48  Cal.  493.) 

This  section  does  not  authorize  the  legislature  to  enact  general 
laws  under  which  corporations  might  extend  the  terra  of  their 
corporate  existence.  (The  Boca  Mill  Co.  v.  Curry,  154  Cal.  323, 
97  Pac.  1117.) 


Art.  XII,  §  1        CONSTITUTION  OF  1879.  412 

A  corporation  sole  can  be  created  only  by  compliance  with  the 
provisions  of  the  Civil  Code.  (Blakeslee  v.  Hall,  94  Cal.  159, 
29  Pac.  623.) 

This  section  does  not  prohibit  the  assis^nment  of  a  francLisa 
to  a  legally  organized  corporation,  by  persons  having  the  lawful 
right  to  exercise  and  transfer  the  same — this  section  referring 
only  to  power  directly  conferred  upon  corporations  by  the  legis- 
lature. (People  V.  Stanford,  77  Cal.  360,  18  Pac.  85,  19  Pac. 
693.) 

A  law  providing  a  special  method  of  assessment  and  collec- 
tion of  taxes  against  railroads  situated  in  more  than  one  county 
is  not  in  violation  of  this  section.  (People  v.  Central  Pac.  E. 
E.  Co.,  105  Cal.  576,  38  Pac.  905.  People  v.  Central  Pac.  E.  E. 
Co.,  83  Cal.  393,  23  Pac.  303,  overruled.) 

An  act  "to  establish  water  rates  in  the  city  and  county  of 
San  Francisco,"  and  a  supplemental  act,  held  unconstitutional 
in  80  far  as  they  attempt  to  provide  a  mode  of  fixing  rates  to 
be  charged  by  corporations  in  San  Praneiseo  differing  from  the 
mode  provided  for  other  corporations  by  general  laws.  (San 
Francisco  v.  Spring  Valley  W.  W.,  53  Cal.  608;  Spring  Valley 
W.  W.  v.  Bryant,  52  Cal.  132j  San  Francisco  v.  Spring  Valley 
W.  W.,  48  Cal.  493.) 

An  act  which  authorizes  the  board  of  supervisors  of  a  county 
to  grant  certain  privileges  to  a  particular  corporation  is  void. 
(Waterloo  etc.  Eoad  Co.  v.  Cole,  51  Cal.  381.) 

An  act  which  grants  to  individuals  powers  and  privileges,  and 
provides  that  the  act  shall  not  take  effect  unless  such  persons 
incorporate  within  a  given  time,  is  a  grant  to  the  corporation, 
and  void.  (San  Francisco  v.  Spring  Valley  W.  W.,  48  Cal.  493. 
California  State  Tel.  Co.  v.  Alta  Tel.  Co.,  22  Cal.  398,  disap- 
proved.) 

Under  this  section  the  legislature  cannot  by  special  act  change 
the  name  of  a  corporation,  but  may  by  general  law  provide  for 
such  change  by  the  superior  court  upon  application  of  the  in- 
corporators. (Matter  of  La  Societe  Francaise  etc.,  123  Cal.  525, 
56  Pac.  458.     See,  also,  Pacific  Bank  v.  De  Eo,  37  Cal.  538.) 

An  act  granting  to  certain  individuals  the  exclusive  right  to 
a  line  of  telegraph  does  not  violate  this  section.  (California 
State  Tel.  Co.  v.  Alta  Tel  Co.,  22  Cal.  398.  But  see  San  Fran- 
cisco V.  Spring  Valley  W.  W.,  48  Cal.  493.) 


413  CONSTITUTION  OP  1879.       Art.  XII,  §  1 

Where  a  franchise  is  conferred  by  the  legislature  to  certain 
individuals  to  supply  a  town  with  water,  and  they  afterward  sell 
such  franchise  to  a  corporation,  this  section  is  not  violated. 
(San  Luis  Water  Co.  v.  Estrada,  117  Cal.  168,  48  Pae.  1075. 
San  Francisco  v.  Spring  Valley  W.  W.,  48  Cal.  493,  distin- 
guished.) 

An  act  conferring  the  power  of  appointing  boards  of  exam- 
iners upon  three  named  societies,  which  are  said  to  be  "existing 
corporations,"  held  not  to  be  in  conflict  with  this  section,  as  the 
power  is  not  conferred  upon  them  as  corporations — the  expres- 
sion "existing  corporations"  being  merelv  descriptio  personarum. 
(Ex  parte  Frazer,  54  Cal.  94;  Ex  parte  McNulty,  77  Cal.  164,  11 
Am.  St.  Eep.  257,  19  Pac.  237;  Ex  parte  Johnson,  62  Cal.  263.) 

This  provision  continued  in  force  section  359  of  the  Code  of 
Civil  Procedure,  limiting  the  time  within  which  an  action  can 
be  brought  to  enforce  the  stockholders'  personal  liability. 
(Santa  Kosa  Nat.  Bank  v.  Barnett,  125  Cal.  407,  58  Pac.  85.) 

Visitation. — The  legislature  has  what  may  be  termed  a  visi- 
torial  or  supervisorial  power  over  corporations,  and  may  examine 
into  their  affairs,  with  a  view  to  correct  corporate  abuses.  (In 
re  Bunkers,  1  Cal.  App.  61,  81  Pac.  748.) 

Alteration  and  repeal  of  charters. — The  right  to  alter  and  re- 
peal is  not  without  limit;  it  must  be  reasonable.  Sheer  oppres- 
sion and  wrong  cannot  be  inflicted  under  the  guise  of  amendment 
or  alteration.  (Spring  Valley  W.  W.  v.  San  Francisco,  61  Cal. 
3.) 

The  power  of  the  legislature  to  alter  and  amend  under  this 
section  does  not  authorize  the  legislature,  while  the  corporation 
exists,  to  deprive  it  of  the  rights,  guaranteed  to  it  by  the  federal 
constitution,  to  due  process  of  law,  and  to  the  equal  protection 
of  the  laws,  nor  to  alter  the  charter  of  foreign  corporations 
doing  business  in  this  state.  (Johnson  v.  Goodyear  Min.  Co., 
127  Cal.  4,  78  Am.  St.  Eep.  17,  59  Pac.  304,  47  L.  K.  A.  338.) 

A  provision  in  tlie  charter  of  a  water  company  permitting  it 
to  name  two  out  of  five  commissioners  to  fix  water  rates  is 
simply  a  privilege,  and  not  a  contract  with  the  company,  and 
may  be  rejiealed  at  any  time.  (Spring  Valley  W.  W.  v.  San 
Francisco,  61  Cal.  3.) 

The  legislature  may,  under  the  reserved  power,  provide  for  the 
consolidation  of  corporations  by  a  majority  vote  of  the  stock- 
holders, without  reference  to  the  will  of  the  dissenting  stock- 


Art.  XII,  §§2,  3     CONSTITUTION  OF  1879.  414 

liolders.     (Market  Street  Ry.  Co.  v.  Hcllman,  109  Cal.  571,  42 
Pac.  225.) 

Under  this  provision  the  people  of  the  state  have  pov/er  t& 
change  the  law  as  to  the  liability  of  stockholders.  (McGowan 
V.  McDonald,  111  Cal.  57,  52  Am.  St.  Eep.  149,  43  Pac.  418.) 

Dues  to  be  secured  by  individual  liability,  etc. 

Sec.  2.  Dues  from  corporations  shall  be  secured  by 
such  individual  liability  of  the  corporators  and  other 
means  as  may  be  prescribed  by  law. 

Stockholders  to  be  individually  liable. 

Sec.  3.  Each  stockholder  of  a  corporation,  or  joint- 
stock  association,  shall  be  individually  and  personally 
liable  for  such  proportion  of  all  its  debts  and  liabilities 
contracted  or  incurred,  during  the  time  he  was  a  stock- 
holder, as  the  amount  of  stock  or  shares  owned  by  him 
bears  to  the  whole  of  the  subscribed  capital  stock,  or 
shares  of  the  corporation  or  association.  The  directors 
or  trustees  of  corporations  and  joint-stock  associations 
shall  be  jointly  and  severally  liable  to  the  creditors 
and  stockholders  for  all  moneys  embezzled  or  misap- 
propriated by  the  oiKcers  of  such  corporation  or  joint- 
stock  association,  during  the  term  of  office  of  such  di- 
rector or  trustee. 

Nothing  in  the  preceding  paragraph  of  this  section 
shall  be  held  to  apply  to  any  exposition  company  organ- 
ized to  promote  and  carry  on  any  international  expo- 
sition or  world's  fair  within  the  state  of  California, 
and  the  liability  of  stockholders  in  any  such  exposition 


415  CONSTITUTION  OP  1879.        Art.  XII,  §  3 

company  shall  be  and  the  same  is  hereby  limited  to 
an  amount  not  exceeding  the  par  value  of  the  stock  of 
said  corporation  subscribed  for  by  such  stockholders. 
(Amendment  adopted  November  3,  1908.) 

[ORIGINAL  SECTION.] 
Sec.  3.  Each  stockholder  of  a  corporation,  or  joint-stock 
association,  sliall  be  individually  and  personally  liable  for  such 
proportion  of  all  its  debts  and  liabilities  contracted  or  incurred, 
during  the  time  he  was  a  stockholder,  as  the  amount  of  stock 
or  shares  owned  by  him  bears  to  the  whole  of  the  subscribed 
capital  stock,  or  shares  of  the  corporation  or  association.  The 
directors  or  trustees  of  corporations  and  joint-stock  associations 
shall  be  jointly  and  severally  liable  to  the  creditors  and  stock- 
holders for  all  moneys  embezzled  or  misappropriated  by  the 
officers  of  such  corporation,  or  joint-stock  association,  during  the 
term  of  office  of  such  director  or  trustee. 

ST0CEKOLDSE,S'  LIABILITY— In  general.— Under  this  sec- 
tion a  stockholder  cannot  be  exempted  by  law  from  his  indi- 
vidual liability.  (McGowan  v.  McDonald,  111  Cal.  57,  52  Am. 
St.  Rep.  149,  43  Pac.  418.) 

A  somewhat  similar  provision  of  the  former  constitution  was 
held  not  to  be  self -executing.  (French  v.  Teschemaker,  24  Cal. 
518.) 

The  former  constitution  left  it  to  the  legislature  to  prescribe 
the  rule  by  which  each  stockholder's  proportion  should  be  ascer- 
tained.     (Larrabce  v.  Baldwin,  35  Cal.  155.) 

Under  the  former  constitution  it  was  held  that  any  one  cred- 
itor, whose  debt  was  sufficient,  might  collect  from  one  particular 
stockholder  the  entire  amount  of  his  liability  on  all  the  corporate 
debts,  leaving  liim  to  sock  contribution  out  of  his  costockholders. 
(Larrabee  v.  Baldwin,  35  Cal.  155.) 

While  it  has  never  been  decided  whether  or  not  this  rule  ap- 
plies under  the  present  constitution,  it  has  been  said  that  "all" 
the  debts  means  every  debt  of  the  company;  and  therefore  any 
creditor  is  entitled  to  sue  any  stockholder  for  his  proportion  of 


Art.  XII,  §  3        CONSTITUTION  OF  1879.  416 

the  indebtedness  of  the  company  to  such  creditor,  without  refer- 
ence to  the  other  debts  of  the  corporation.  (Morrow  v.  Superior 
Court,  64  Cal.  383,  1  Pac.  354.) 

An   act   authorizing  the   formation   of  corporations,   without 
attaching  to  the  stoclcholders   an   individual  liability  would  be. 
unconstitutional,  and  the  persons  organized  under  such  an  act 
would  acquire  none  of  the  rights  of  a  corporation.     (French  v. 
Teschemaker,  24  Cal.  518.) 

But  the  creditors  of  a  corporation  may  waive  the  personal 
liability  of  the  stockholders  at  the  time  of  contracting  with  the 
corjioration.     (French  v.  Teschemaker,  24  Cal.  518.) 

A  depositor  in  a  savings  bank  does  not  waive  the  personal 
liability  of  the  stockholders  by  an  unsigned  agreement  printed 
in  the  book  of  each  depositor,  nor  by  a  printed  release  of  liabil- 
ity inserted  in  the  signature-book,  to  which  no  special  subscrip- 
tion was  made  by  the  depositors.  (Wells  v.  Black,  117  Cal.  157, 
59  Am.  St.  Rep.  162,  48  Pac.  1090,  37  L.  R.  A.  619.) 

A  by-law  of  a  corporation  that  the  stockholders  shall  not  be 
personally  liable  for  the  debts  of  the  corporation  is  void.  (Wells 
V.  Black,  117  Cal.  157,  59  Am.  St.  Rep.  162,  48  Pac.  1090,  37  L. 
R.  A.  619.) 

A  law  limiting  tlie  time  within  which  an  action  can  be  brought 
under  this  section  to  three  years  from  the  creation  of  the  liabil- 
ity is  valid.  (Santa  Rosa  Nat.  Bank  v.  Barnett,  125  Cal.  407, 
58  Pac.  85.) 

An  act  authorizing  a  city  to  subscribe  to  the  stock  of  a  cor- 
poration, provided  the  corporation  should  make  it  a  condition 
of  all  contracts  entered  into  by  it  that  the  city  should  not  be 
liable  as  a  stockholder,  is  not  invalid  as  taking  away  the  liabil- 
ity fixed  by  the  constitution.  (French  v.  Teschemaker,  24  Cal. 
518.) 

One  stockholder  may  enforce  the  personal  liability  of  other 
stockholders  in  the  corporation  for  a  debt  due  such  stockholder 
from  the  corporation.  (Brown  v.  Merrill,  107  Cal.  446,  48  Am. 
St.  Rep.  145,  40  Pac.  557;  Knowles  v.  Sandercock,  107  Cal.  629, 
40  Pac.  1047.) 

This  provision  applies  to  corporations  formed  before  as  well 
as  after  the  adoption  of  the  new  constitution.  (McGowan  v. 
McDonald,  111  Cal.  57,  52  Am.  St.  Rep.  149,  43  Pac.  418.) 

Under  a  like  provision  in  the  constitution  of  Kansas  it  was 
held  that  it  was  enforceable  in  this  state  against  California 


417  CONSTITUTION  OF  1879,       Art.  XII,  §  3 

stockholders  in  a  Kansas  corporation.  (Ferguson  v,  Sherman, 
116  Cal.  169,  47  Pac.  1023,  37  L.  E.  A.  622.) 

When  it  attaches. — This  section  has  no  application  to  liabili- 
ties of  stockholders  which  accrued  prior  to  its  adoption.  (Har- 
mon V.  Page,  62  Cal.  448.) 

A  subscriber  for  shares  is  responsible  as  a  stockholder,  al- 
though he  has  not  paid,  for  his  stock  or  received  a  certificate 
therefor.     (Mitchell  v.  Beckman,  64  Cal.  117,  28  Pac.  110.) 

A  pledgee  of  stock  is  not  a  stockholder  within  the  meaning  of 
this  section.  (Borland  v.  Nevada  Bank,  99  Cal.  89,  37  Am.  St. 
Eep.  32,  33  Pac.  737.) 

As  to  who  is  a  stockholder  under  this  section,  see  Abbott  v. 
Jack,  136  Cal.  510,  69  Pac.  257. 

The  liability  of  the  stockholder  is  dependent  upon  the  fact 
that  he  is  a  stockholder  at  the  time  the  debt  is  created,  and 
such  liability  cannot  be  extended  by  the  corporation  by  a  note 
given  for  an  indebtedness  not  created  while  he  was  a  stock- 
holder, by  suffering  a  judgment  to  be  recovered  on  such  in- 
debtedness, or  in  any  other  manner.  (Wiuona  Wagon  Co.  v. 
Bull,  108  Cal.  1,  40  Pac.  1077;  Larrabee  v.  Baldwin,  35  Cal.  155; 
Danielson  v.  Yoakum,  116  Cal.  382,  48  Pac.  322;  Partridge  v. 
Butler,  113  Cab  326,  45  Pac.  678;  Santa  Kosa  Nat.  Bank  v, 
Barnett,  125  Cal.  407,  58  Pac.  85.) 

The  liability  of  a  stockholder  in  a  savings  bank  accrues  at 
the  time  of  the  acceptance  of  the  deposit.  (Wells  v.  Black,  117 
Cal.  157,  59  Am.  St.  Rep.  162,  48  Pac.  1090,  37  L.  E.  A.  619.) 

A  stockholder  in  a  savings  bank  is  liable  for  his  proportion 
of  a  deposit  in  such  bank.  (Wells  v.  Black,  117  Cal.  157,  59 
Am.  St.  Eep.  162,  48  Pac.  1090,  37  L.  E.  A.  619.) 

A  liability  for  overdi'afts  to  a  bank  is  created  upon  the  daily 
balances  against  the  corporation  shown  by  the  account.  (Santa 
Eosa  Nat.  Bank  v.  Barnett,  125  Cal.  407,  58  Pac.  85.) 

The  liability  of  a  eorporation  for  the  services  of  an  attorney 
is  not  created  until  the  rendition  of  the  services.  (Johnson  v. 
Bank  of  Lake,  125  Cal.  6,  73  Am.  St.  Eep.  17,  57  Pac.  664.) 

Where  an  aceommodation  indorser  of  the  note  of  a  corpora- 
tion pays  the  same,  the  debt. is  extinguished  and  the  stockhold- 
er's liability  upon  the  debt  comes  to  an  end,  and  neither  under 
the  doctrine  of  equitable  assignment  nor  of  subrogation  can  it 
be  transferred  as  a  live  and  subsisting  obligation,  but  at  the 
Constitution — 27 


Art.  XII,  §  3       CONSTITUTION  OP  1879.  418 

time  of  payment  by  the  indorsor  a  new  liability  springs  up 
against  the  corporation  and  its  stockholders,  a  liability  upon  an 
implied  contract  to  reimburse  what  has  been  expended,  includ- 
ing costs  and  expenses.  (Yule  v.  Bishop,  133  Cal.  574,  65  Pac. 
1094.) 

Nature  of. — An  action  to  recover  upon  the  liability  of  a  stock- 
holder is  an  action  at  law.  (Morrow  v.  Superior  Court,  64  Cal. 
383,  1  Pac.  354.) 

A  stockholder's  liability  is  a  "liability  created  by  law." 
(Moore  v.  Boyd,  74  Cal.  167,  15  Pac.  670:  Hunt  v.  Ward,  99  Cal. 
612,  37  Am.  St.  Kep.  87,  34  Pac.  335.) 

It  is  also  a  liability  created  by  statute.  (Bank  v.  Pacific  Coast 
S.  S.  Co.,  103  Cal.  594,  37  Pac.  499.) 

It  is  also  an  obligation  arising  upon  contract.  (Dennis  v. 
Superior  Court,  91  Cal.  548,  27  Pac.  1031;  Kennedy  v.  California 
Sav.  Bank,  97  Cal.  93,  33  Am.  St.  Eep.  163,  31  Pac.  846.) 

The  liability  of  a  stockholder  of  a  corporation  for  his  pro- 
portionate share  of  its  debts  is  created  by  statute  and  barred 
within  three  years  after  the  cause  of  action  accrues.  (Jones  v. 
Goldtree  Bros.  Co.,  142  Cal.  383,  77  Pac.  939.) 

The  obligation  of  stockholders  is  direct  and  primary.  They 
are  principal  debtors,  and  not  sureties  of  the  corporation,  and 
their  liability  is  not  contingent  upon  a  recovery  against  the 
corporation,  nor  is  it  affected  by  a  suspension  or  renewal  as  to 
the  corporation.  (Fayinonville  v.  MeCollough,  59  Cal.  285; 
Davidson  v.  Eankin,  34  Cal.  503;  Hyman  v.  Coleman,  82  Cal. 
650,  16  Am.  St.  Eep.  178,  23  Pac.  62;  Mitchell  v.  Beckman,  64 
Cal.  117,  28  Pac.  110.) 

Stockholders  are  not  jointly  and  severally  liable,  but  each 
stockholder  is  severally  liable  for  his  proportion  of  the  indebted- 
DiBss,  and  when  he  has  paid  his  portion  of  any  debt,  or  of  all  the 
debts  of  the  corporation,  he  is  freed  from  all  liability,  and  has 
no  cause  of  action  against  any  other  stockholder  for  money  so 
paid.  (Brown  v.  Men  ill,  107  Cal.  446,  48  Am.  St.  Eep.  145,  40 
Pac.  557;  Derby  v.  Stevens,  64  Cal.  287,  30  Pac.  820.) 

The  mere  fact  that  the  corporation  has  pledged  to  the  debtor 
certain  property  as  security  for  the  debt  does  not  prevent  the 
debtor  from  suing  the  stockholders.  (Sonoma  Valley  Bank  v. 
Hill,  59  Cal.  107.) 


419  CONSTITUTION  OP  1879.       Art.  XII,  §  3 

A  judgment  against  the  corporation  does  not  extinguish,  sus- 
pend or  merge  the  liability  of  the  stockholders.  (Young  v. 
Itosenbaum,  39  Cal.  646.) 

Nor  does  such  a  judgment  prolong  the  time  within  which  an 
action  may  be  maintained  against  the  stockholders.  (Stillphen 
V.  Ware,  45  Cal.  110.) 

An  action  may  be  maintained  against  the  stockholders,  al- 
though the  debt  is  secured  by  a  mortgage  of  the  corporation 
which  has  not  been  foreclosed.  (Knowles  v.  Sandercock,  107 
Cal.  629,  40  Pac.  1047.) 

Stockholders  are  liable  for  interest  as  well  as  principal. 
(Wells,  Fargo  &  Co.  v.  Enright,  127  Cal.  669,  60  Pac.  439,  49 
L.  R.  A.  647.) 

.  A  stockholder  of  an  insolvent  bank  has  no  right  to  share  in 
the  dividends  of  the  bank  by  way  of  subrogation  to  the  rights 
of  a  creditor  to  whom  he  has  paid  his  proportionate  share  of 
his  claim.  (Sacramento  Bank  v.  Pacific  Bank,  124  Cal.  147,  71 
Am.  St.  Rep.  36,  56  Pac.  787,  45  L.  R.  A.  863.) 

Release  of. — Whenever  a  debt  of  a  corporation  is  satisfied  in 
part,  there  is  also  pro  tanto  a  discharge  of  the  liability  of  the 
stockholders.     (San  Jose  Sav.  Bank  v.  Pharis,  58  Cal.  .380.) 

Where  a  creditor  of  a  corporation  releases  a  istoekholder  from 
all  personal  liability,  he  thereby  discharges  the  corporation  and 
other  stockholders  to  the  same  extent  as  the  one  to  whom  the 
release  is  executed.  If  the  release  is  for  the  releasee's  propor- 
tion, the  company  and  other  stockholders  are  only  released  pro 
tanto.     (Prince  v.  Lynch,  38  Cal.  528,  99  Am.  Dec.  427.) 

Practice. — A  complaint  to  recover  on  the  stockholder's  lia- 
bility must  state  the  amount  of  the  whole  number  of  shares 
subscribed  for.  (Bidwell  v.  Babcock,  87  Cal.  29,  25  Pac.  752; 
Eoebling's  Sons  Co.  v.  Butler,  112  Cal.  677,  45  Pac.  6.) 

As  to  the  form  of  the  complaint  generallv,  see  Duke  v.  Hunt- 
ington, 130  Cal.  272,  62  Pac.  510;  Whitehurst  v.  Stuart,  129  Cal. 
194,  61  Pac.  963. 

The  complaint  must  show  affirmatively  that  the  defendant  was 
a  stockliolder  when  the  dcljt  v.^as  incurred,  and  a  mere  allegation 
that  he  was  a  stockholder  when  the  note  was  executed  is  in- 
sufficient. (Case  Plow  Works  v.  Montgomery,  115  Cal,  380,  47 
Pac.  108.) 

A  complaint  in  an  action  against  stockholders  to  recover  their 
proportionate  share  of  the  debts  of  the  corporation,  which  does 


Art.  XII,  §  3       CONSTITUTION  OP  1879.  420 

not  aver  tlie  whole  number  of  shares  of  the  subscribed  capital 
stock,  is  fatally  defective.  (San  Francisco  etc.  Agency  v. 
Miller,  4  Cal.  App.  291,  87  Pac.  630.) 

An  allegation  of  the  number  of  shares  issued  is  not  sufficient 
to  show  the  amount  subscribed.  (San  Francisco  etc.  Agency  v. 
Miller,  4  Cal.  App.  291,  87  Pac.  630.) 

A  creditor  is  not  bound  to  exhaust  the  remedies  against  the 
corporation  before  proceeding  against  the  stockholder.  (Morrow 
V.  Superior  Court,  64  Cal.  383,  1  Pac.  354.) 

The  provisions  of  this  section  do  not  oust  a  court  Of  equity 
of  jurisdiction  to  compel  stockholders  to  pay  for  the  benefit  of 
creditors  the  amount  of  the  capital  stock  subscribed  for  by 
him.     (Harmon  v.  Page,  62  Cal.  448.) 

Although  the  liability  of  the  stockholder  is  that  of  an  original 
del: ".or,  it  is  proper  to  plead  the  debt  as  that  of  the  corporation, 
(Knowles  v.  Sandercock,  107  Cal.  629,  40  Pac.  1047.) 

Where  one  stockholder  pays  a  note  of  the  corporation,  and 
sues  the  other  stockholders  for  contribution,  the  superior  court 
has  no  jurisdiction,  if  the  several  amounts  asked  against  each 
stockholder  are  less  than  three  hundred  dollars,  (Myers  v. 
Sierra  Valley  etc.  Co.,  122  Cal.  669,  55  Pac.  689.) 

LIABILITY  OF  DIRECTORS. — This  provision  only  applies 
to  such  misappropriations  of  moneys  as  are  similar  to  embezzle-- 
ment,  consisting  of  the  misappropriations  of  funds  intrusted  to 
an  officer  for  a  particular  purpose,  by  devoting  them  to  some  un- 
authorized purpose,  and  does  not  apply  to  the  payment  of  an 
extravagant  price  for  services  or  materials  properly  appertain- 
ing to  the  business  of  the  corporation.  (Fox  v.  Hale  &  Norcross 
etc.  Min.  Co.,  108  Cal.  369,  41  Pac.  308.) 

Liability  must  be  strictly  limited  to  money  misappropriated 
by  the  officer.  (Hercules  Oil  Co,  v,  Hocknell,  5  Cal.  App,  702, 
9i  Pac.  341. 

An  action  at  law  on  behalf  of  one  or  more  of  the  creditors 
of  a  corporation  cannot  be  sustained  under  the  provision  as  to 
the  liability  of  directors,  but  the  only  proper  remedy  is  a  bill 
in  equity  where  all  the  creditors  are  parties,  or  are  represented, 
and  in  which  there  can  be  an  accounting  after  ascertainment 
of  facts.     (Winchester  v.  Mabury,  122  Cal.  522,  55  Pac.  393.) 

The  provision  of  this  section  as  to  the  liability  of  directors 
and  trustees  is  self-executing,  (Winchester  v.  Howard,  136  Cal. 
452,  89  Am.  St.  Eep.  153,  69  Pac.  77,  64  Pac.  692.) 


421  CONSTITUTION  OF  1879.       Art.  XII,  §  4 

The  proper  remedy  for  the  enforcement  of  this  provision 
against  directors  and  trustees  is  by  bill  in  equity.  (Winchester 
V.  Howard,  136  Cal.  432,  89  Am.  St.  Rep.  153,  69  Pac.  77,  61 
Pae.  692.) 

This  provision  is  not  in  violation  of  the  federal  constitution. 
(Winchester  v.  Howard,  136  Cal.  432,  89  Am.  St.  Rep.  153,  69 
Pac.  77,  64  Pac.  692.) 

An  assignee  of  a  depositor  in  a  bank  may  maintain  an  action 
under  this  section.  (Winchester  v.  Howard,  136  Cal.  432,  89 
Am.  St.  Rep.  153,  69  Pac.  77,  64  Pac.  692.) 

Depositors  who  became  such  after  the  misappropriation  may 
maintain  the  action.  (Winchester  v.  Howard,  136  Cal.  432,  89 
Am.  St.  Rep.  153,  69  Pac.  77,  64  Pac.  692.) 

The  claim  of  the  creditor  need  not  be  reduced  to  judgment 
before  an  action  is  brought  under  this  provision.  (Winchester 
V.  Howard,  136  Cal.  432,  89  Am.  St.  Rep.  153,  69  Pac.  77,  64 
Pac.  692.) 

Nor  need  he  make  a  specific  demand  for  an  accounting  before 
bringing  the  action.  (Winchester  v.  Howard,  136  Cal.  432,  89 
Am.  St.  Rep.  153,  69  Pac.  77,  64  Pac.  692.) 

When  a  creditor  brings  an  action  under  this  section  on  be- 
half of  himself  and  all  other  creditors,  he  becomes  a  trustee 
for  them  as  to  any  amount  recovered  or  received  in  settlement. 
(Niccolls  v.  Rice,  147  Cal.  633,  82  Pac.  321.) 

When  a  creditor  brings  an  action  under  this  section  in  his 
own  behalf  and  in  behalf  of  all  other  creditors  who  may  join 
with  him,  he  does  not  become  a  txustee  as  to  a  creditor  who 
never  did  join.     (Niccolls  v.  Rice,  147  Cal.  633,  82  Pac.  321.) 

Corporations  construed. 

Sec.  4.  The  term  corporations,  as  used  in  this  arti- 
cle, shall  be  construed  to  include  all  associations  and 
joint-stock  companies  having  any  of  the  powers  or  privi- 
leges of  corporations  not  possessed  by  individuals  or 
partnerships;  and  all  corporations  shall  have  the  right 
to  sue  and  shall  be  subject  to  be  sued,  in  all  courts,  in 
like  cases  as  natural  persons. 


Art.  XII,  §§  5,  6     CONSTITUTION  OP  1879.  422 

Banking  prohibited. 

Sec.  5.  The  legislature  shall  have  no  power  to  pass 
any  act  granting  any  charter  for  banking  purposes,  but 
corporations  or  associations  may  be  formed  for  such 
purposes  under  general  laws,  and  the  legislature  shall 
provide  for  the  classification  of  cities  and  towns  by 
population  for  the  purpose  of  regulating  the  business  of 
banking.  No  corporation,  association,  or  individual  shall 
issue  or  put  in  circulation,  as  money,  anything  but  the 
lawful  money  of  the  United  States.  (Amendment 
adopted  November  8,  1910.) 

[OREGINAL  SECTION.] 

See.  5.  The  legislature  shall  have  no  power  to  pass  any  act 
granting  any  charter  for  banking  purposes,  but  corporations  or 
associations  may  be  formed  for  such  purposes  under  general 
laws.  No  corporation,  association,  or  individual  shall  issue  or 
put  in  circulation,  as  money,  anything  but  the  lawful  money 
of  the  United  States. 

BANKING  CORPORATIONS. — A  corporation  may  be  formed 
for  the  purpose  of  receiving  deposits  and  loaning  money,  and  if 
it  does  not  issue  paper  to  circulate  as  money,  it  is  not  a  bank, 
although  it  is  called  such.  (Bank  of  Sonoma  v.  Fairbanks,  52 
Cal.  196.) 

Sections  34  and  35,  article  4,  of  the  constitution  of  1849  did 
not  prohibit  the  formation  of  banking  corporations  for  the  pur- 
pose of  deposit  and  loan,  which  do  not  issue  paper  to  circulate 
as  money.  (Bank  of  Martinez  v.  Hemme  etc.  Land  Co.,  105 
Cal.  376,  38  Pac.  963.) 

Existing  charters,  when  invalid. 

Sec.  6.  All  existing  charters,  grants,  franchises, 
special  or  exclusive  privileges,  under  which  an  actual 


423  CONSTITUTION  OF  1879.        Art.  XII,  §  7 

and  bona  fide  organization  shall  not  have  taken  place, 
and  business  been  commenced  in  good  faith,  at  the  time 
of  the  adoption  of  this  constitution,  shall  thereafter 
have  no  validity. 

Charters  not  to  be  extended,  nor  forfeiture  remitted. 

Sec.  7.  The  legislature  shall  not  extend  any  fran- 
chise or  charter,  nor  remit  the  forfeiture  of  any  fran- 
chise or  charter  of  any  quasi-public  corporation  now 
existing  or  which  shall  hereafter  exist  under  the  laws 
of  this  state.  The  term  of  existence  of  any  other  cor- 
poration now  or  hereafter  existing  under  the  laws  of 
this  state,  may  be  extended,  at  any  time  prior  to  the 
expiration  of  its  corporate  existence,  for  a  period  not 
exceeding  fifty  years  from  the  date  of  such  extension, 
by  the  vote  or  written  consent  of  stockholders  repre- 
senting two-thirds  of  its  capital  stock  or  of  two-thirds 
of  the  members  thereof.  A  certificate  of  such  vote  or 
consent  shall  be  signed  and  sworn  to  by  the  president 
and  secretary,  and  by  a  majority  of  the  directors  of  the 
corporation  and  filed  and  certified  in  the  manner  and 
upon  payment  of  fees  required  by  law  for  filing  and  cer- 
tifying articles  of  incorporation,  and  thereupon  the 
term  of  the  corporation  shall  be  extended  for  the  period 
specified  in  such  certificate,  and  such  corporation  shall 
thereafter  pay  all  annual  or  other  fees  required  by  law 
to  be  paid  by  corporations.  (Amendment  adopted 
November  3,  1908.) 


Art.  XII,  §§  8,  9     CONSTITUTION  OF  1879.  424 

[ORIGINAL  SECTION.] 
Sec.  7.     The    legislature    shall    not    extend    any   franchise   or 
charter,   nor  remit  the  forfeiture  of   any   franchise  or  charter 
of  any  corporation  now  existing,  or  which  shall  hereafter  exist 
under  the  laws  of  this  state. 

CORPORATE  FRANCHISES.— An  act  waiving  a  right  to 
enforce  a  forfeiture  does  not  "remit  the  forfeiture,"  since  there 
is  no  forfeiture  until  the  sovereignty  which  created  the  fran- 
chise, by  proper  proceeding  in  a  proper  court,  procure  an  ad- 
judication of  forfeiture,  and  enforce  it.  (People  v.  Los  Angeles 
etc.  By.  Co.,  91  Cal.  338,  27  Pac.  673.) 

The  amendment  of  1907  to  section  401,  Civil  Code,  allowing 
corporations  to  extend  the  term  of  their  corporate  existence  not 
exceeding  fifty  years  from  the  date  of  such  extension,  is  in  con- 
flict with  this  section,  (Boca  Mill  Co.  v.  Curry,  154  Cal.  326. 
97  Pac.  1117.) 

All  franchises  subject  to  the  right  of  eminent  domain. 

Sec.  8.  The  exercise  of  the  right  of  eminent  domain 
shall  never  be  so  abridged  or  construed  as  to  prevent 
the  legislature  from  taking  the  property  and  franchises 
of  incorporated  companies  and  subjecting  them  to  pub- 
lic use  the  same  as  the  property  of  individuals,  and 
the  exercise  of  the  police  power  of  the  state  shall  never 
be  so  abridged  or  construed  as  to  permit  corporations 
to  conduct  their  business  in  such  a  manner  as  to  in- 
fringe the  rights  of  individuals  or  the  general  well-be- 
ing of  the  state. 

Restrictions  on  powers  of  corporations. 

Sec.  9.  No  corporation  shall  engage  in  any  business 
other  than  that  expressly  authorized  in  its  charter,  or 


425  CONSTITUTION  OP  1879.      Art.  XII,  §  10 

the  law  under  which  it  may  have  been  or  may  hereafter 
be  organized ;  nor  shall  it  hold  for  a  longer  period  than 
five  years  any  real  estate  except  such  as  may  be  neces- 
sary for  carrying  on  its  business. 

CORPORATE  PURPOSES. — A  corporation  is  forbidden  to  en- 
gage in  any  business  other  than  is  expressly  authorized  in  its 
charter  or  the  law  under  which  it  is  organized.  To  hold  stock 
in  another  corporation  is  to  engage  in  the  business  of  such  cor- 
poration. (Knowles  v.  Sandercock,  107  Cal.  629,  643,  40  Pac. 
1047.) 

This  section  does  not  cause  property  held  in  violation  of  it  to 
escheat  to  the  state.  (People  v.  Stockton  Sav.  etc.  Soc,  133 
Cal.  611,  85  Am.  St.  Rep.  225,  65  Pac.  1078.) 

While  this  provision  is  mandatory  and  prohibitory,  it  is  not 
so  self-executing  as  to  deny  the  power  of  the  legislature  to 
prescribe  penalties  for  its  violation.  (People  v.  Stockton  etc. 
Soc,  133  Cal.  611,  85  Am.  St.  Rep.  225,  65  Pac.  1078.) 

The  mere  fact  that  a  bank  is  forbidden  to  take  an  assignment 
of  a  certificate  of  redemption  does  not  invalidate  the  assignment 
in  favor  of  a  third  person.  (Youd  v.  German  Sav.  &  Loan  Soc, 
3  Cal.  App.  706,  86  Pac,  991.) 

Liabilities  of  franchise  under  lease  or  grant. 

Sec.  10.  The  legislature  shall  not  pass  any  laws 
permitting  the  leasing  or  alienation  of  any  franchise,  so 
as  to  relieve  the  franchise  or  property  held  thereunder 
from  the  liabilities  of  the  lessor  or  grantor,  lessee  or 
grantee,  contracted  or  incurred  in  the  operation,  use, 
or  enjoyment  of  such  franchise,  or  any  of  its  privileges. 

AlilENATION  OF  FRANCHISES.— This  section  does  not  give 
a  personal  action  against  the  corporation  which  owned  prop- 
erty for  an  injury  which  has  resulted  to  an  employee  of  a  lessee 
of  the  owner  in  the  use  of  the  property  in  the  hands  of  the 
lessee,  but  is  designed  to  subject  the  franchise  and  property  to 


Art.  XII,  §  11      cOxNSTiTUTiON  OF  1879.  426 

liability  incurred  in  its  occupation,  whether  the  franchise  be 
exercised  or  the  property  be  used  by  the  original  owner  or  the 
lessee  or  grantee.  (Lee  v.  Southern  Pac.  E.  R.  Co.,  116  Cal. 
97,  58  Am.  St.  Eep.  140,  47  Pac.  932,  38  L.  R.  A.  71.) 

The  transfer  of  a  franchise  by  a  water  company  is  not  pro- 
hibited by  this  section,  which  only  forbids  the  transfer  of  a 
franchise  "so  as  to  relieve  the  franchise  or  property  held  there- 
under" from  liabilities  incurred  in  its  operation.  Validity  of 
section  361a,  Civil  Code,  upheld.  (South  Pasadena  v.  Pasadena 
Land  etc.  Co.,  152  Cal,  579,  93  Pac.  490.) 

Corporation  stock,  restriction  on  issue  of. 

Sec.  11.  No  corporation  shall  issue  stock  or  bonds, 
except  for  money  paid,  labor  done,  or  property  actually 
received,  and  all  fictitious  increase  of  stock  or  indebted- 
ness shall  be  void.  The  stock  and  bonded  indebtedness 
of  corporations  shall  not  be  increased  except  in  pur- 
suance of  general  law,  nor  without  the  consent  of  the 
persons  holding  the  larger  amount  in  value  of  the  stock, 
at  a  meeting  called  for  that  purpose,  giving  sixty  days' 
public  notice,  as  may  be  provided  by  law. 

CORPORATE  STOCK.— An  increase  of  the  capital  stock  of 
a  corporation  and  the  issuing  of  additional  shares,  to  be  sold  at 
a  price  less  than  the  nominal  par  value  of  the  stock,  to  supply 
a  fund  actually  required  for  the  use  of  the  corporation,  is  not  a 
fictitious  issuance.     (Stein  v.  Howard,  65  Cal.  616,  4  Pac.  662.) 

Non-negotiable  notes  secured  by  mortgages  executed  by  a  cor- 
poration do  not  constitute  "bonded  indebtedness"  within  the 
meaning  of  this  section.  (Underhill  v.  Santa  Barbara  etc.  Imp. 
Co.,  93  Cal.  300,  28  Pac.  1049.) 

This  provision  is  mandatory  and  not  merely  directory.  (Na- 
vajo Min.  Co.  V.  Curry,  147  Cal,  581,  109  Am.  St.  Rep.  176,  82 
Pac.  247.) 

The  requirement  of  sixty  days'  notice  of  stockholders'  meeting 
cannot  be  waived  by  the  stockholders,  and  the  fact  that  all  the 


427  CONSTITUTION  OF  1879.      Art.  XII,  §  12 

stockholders  attended  and  voted  for  the  increase  is  immaterial. 
(Navajo  Min.  Co.  v.  Curry,  147  Cal.  581,  109  Am.  St.  Eep.  176, 

82  Pac.  247.) 

It  is  legitimate  for  a  corporation  to  dispose  of  its  stock  for 
full  value  received  in  laiid,  property  or  services.  (Turner  v. 
Fidelity  Loan  Concern,  2  Cal.  App.  122,  83  Pac.  62.) 

When  a  corporation  issues  stock  for  property  or  services,  the 
presumption  is  that  the  transaction  was  fair  until  the  contrary 
is  shown.     (Turner  v.  Fidelity  Loan  Concern,  2  Cal.  App.  122, 

83  Pac.  62.) 

The  issue  of  stock  as  fully  paid  up  to  the  stockholders  of  a 
corporation  formed  to  take  over  partnership  assets  and  hold  the 
same  as  trustee  for  the  stockholders  is  not  unlawful.  (Baldwin 
V.  Miller  &  Lux,  152  Cal.  454,  92  Pac.  1030.) 

The  procedure  provided  by  the  constitution  for  an  increase 
of  the  bonded  indebtedness  of  a  corporation  is  not  applicable 
to  the  original  creation  of  a  bonded  debt.  (Merced  Eiver  Elec- 
tric Co.  v.  Curry,  157  Cal.  727,  109  Pac.  264.) 

Election  of  directors — Cumulative  or  distributive  votes. 
Sec.  12.  In  all  elections  for  directors  or  managers  of 
corporations  every  stockholder  shall  have  the  right  to 
vote,  in  person  or  by  proxy,  the  number  of  shares  of 
stock  owned  by  him  for  as  many  persons  as  there  are 
directors  or  managers  to  be  elected,  or  to  cumulate  said 
shares  and  give  one  candidate  as  many  votes  as  the 
number  of  directors  multiplied  by  the  number  of  his 
shares  of  stock  shall  equal,  or  to  distribute  them,  on  the 
same  principle,  among  as  many  candidates  as  he  shall 
think  fit;  and  such  directors  or  managers  shall  not  be 
elected  in  any  other  manner,  except  that  members  of 
co-operative  societies  formed  for  agricultural,  mer- 
cantile, and  manufacturing  purposes,  may  vote  on  ail 


Art.  XII,  §§  13, 14    CONSTITUTION  OF  1879.  428 

questions  affecting  such  societies  in  manner  prescribed 
by  law. 

DIRECTORS. — Under  this  section  all  the  directors  must  be 
elected  on  one  ballot.  (Wright  v.  Central  etc.  Water  Co.,  67 
Cal.  532,  8  Pac.  70.) 

State  not  to  loan  its  credit  nor  subscribe  to  stock  of 
corporations. 
See.  13.     The  state  shall  not  in  any  manner  loan  its 
credit,  nor  shall  it  subscribe  to,  or  be  interested  in  the 
stock  of  any  company,  association,  or  corporation. 

STATE  CREDIT.— This  section  prohibits  the  loaning  of  public 
credit  for  private  purposes  under  any  circumstances.  (Stockton 
etc.  R.  R.  Co.  V.  Stockton,  41  Cal.  147;  Ramsey  v.  Hoeger,  76 
111.  432.) 

It  does  not  prohibit  the  appropriation  of  public  funds  to  aid 
a  corporation  in  the  construction  of  a  railroad  to  be  used  for 
military  purposes.     (People  v.  Pacheco,  27  Cal.  175.) 

Corporations  to  have  ofl&ce  for  transaction  of  business 
in  stocks. 
Sec.  14.  Every  corporation  other  than  religious, 
educational,  or  benevolent,  organized  or  doing  business 
in  this  state,  shall  have  and  maintain  an  office  or  place 
in  this  state  for  the  transaction  of  its  business,  where 
transfers  of  stock  shall  be  made,  and  in  which  shall  be 
kept,  for  inspection  by  every  person  having  an  interest 
therein,  and  legislative  committees,  books  in  which  shall 
be  recorded  the  amount  of  capital  stock  subscribed,  and 
by  whom;  the  names  of  the  owners  of  its  stock,  and  the 


429  CONSTITUTION  OF  1879.      Art.  XII,  §  15 

amounts  owned  by  them  respectively;  the  amount  of 
stock  paid  in,  and  by  whom;  the  transfers  of  stock;  the 
amount  of  its  assets  and  liabilities,  and  the  names  and 
place  of  residence  of  its  officers. 

CORPORATION  BOOKS. — A  stockholder  in  a  corporation  has 
the  right  to  inspect  the  books,  records  and  journals  of  the  cor- 
poration, and  this  right  may  be  enforced  by  mandamus.  The 
purpose  for  which  the  inspection  is  desired  is  immaterial.  (John- 
son V.  Langdon,  135  Cal.  624,  87  Am.  St.  Rep.  156,  67  Pac.  1050.) 

Mandamus  will  lie  to  compel  an  inspection  of  corporate  books, 
records  and  journals.  (Gavin  v.  Pacific  Coast  M.  F.  Union,  2 
Cal.  App.  638,  84  Pac.  270.) 

A  corporation  seeking  to  avoid  the  right  of  a  stockholder  to 
an  inspection  on  the  ground  that  it  is  a  benevolent  or  charitable 
corporation  has  the  burden  of  showing  that  it  is  such  a  corpora- 
tion. (Gavin  v.  Pacific  Coast  M.  F.  Union,  2  Cal.  App.  638,  84 
Pac.  270.) 

Foreign  corporations,  conditions. 

Sec.  15.  No  corporation  organized  outside  the  limits 
of  this  state  shall  be  allowed  to  transact  business  within 
this  state  on  more  favorable  conditions  than  are  pre- 
scribed by  law  to  similar  corporations  organized  under 
the  laws  of  this  state. 

FOREIGN  CORPORATIONS.— The  act  of  1880,  providing  for 
a  penalty  for  failure  of  the  directors  of  a  domestic  mining  cor- 
poration to  post  weekly  reports,  etc.,  is  not  in  violation  of  this 
section,  and  docs  not  relate  to  the  business  of  the  corporation. 
(Miles  v.  Woodward,  115   Cal.  308,  46  Pac.   1076.) 

This  section  was  not  designed  to  limit  the  powers  of  the  legis- 
lature when  dealing  with  the  organization  and  government  of 
corporations  which  are  created  by  its  own  will  and  act.  (Miles 
V.  Woodward,  115  Cal.  308,  46  Pac.  1070.) 

The  act  of  187G,  requiring  banking  corporations  to  publish 
and   file    statements   of   their   assets   and     liabilities,    applies   to 


Art.  XII,  §  16      CONSTITUTION  OP  1879.  430 

foreign  corporations.  (Bank  of  British  North  America  v.  Madi- 
son, 99  Cal.  125,  133,  33  Pae.  762.) 

As  to  whether  by  reason  of  this  section,  foreign  corporations 
must  comply  with  section  299  of  the  Civil  Code,  query.  (Anglo- 
Calif  ornian  Bank  v.  Field,  146  Cal.  644,  80  Pac.  lOSO.) 

The  sale  of  a  parcel  of  real  estate  by  a  foreign  corporation 
of  similar  character  and  purpose  to  corporations  formed  under 
section  593  of  the  Civil  Code,  being  merely  incidental  to  the 
main  purposes  of  incorporation,  is  not  the  transacting  of  business, 
forbidden  to  foreign  corporations  on  more  favorable  conditions 
than  are  prescribed  for  domestic  corporations.  (Conference 
Free  Baptists  v,  Berkey,  156  Cal.  466,  105  Pac.  411.) 

This  section  is  not  violated  by  the  corporation  license  tax  act 
of  March  29,  1905,  as  the  conditions  prescribed  upon  which  cor- 
porations are  allowed  to  transact  business  within  this  state 
are  absolutely  the  same  as  to  both  domestic  and  foreign  corpora- 
tions. (Kaiser  Land  &  Fruit  Co.  v.  Curry,  155  Cal.  638,  103  Pac. 
341.) 

Corporations,  where  to  be  sued. 

Sec.  16.  A  corporation  or  association  may  be  sued 
in  the  county  where  the  contract  is  made  or  is  to  be  per- 
formed, or  where  the  obligation  or  liability  arises,  or 
the  breach  occurs;  or  in  the  county  where  the  principal 
place  of  business  of  such  corporation  is  situated,  subject 
to  the  power  of  the  court  to  change  the  place  of  trial  as 
in  other  cases. 

ACTIONS  AGAINST  CORPORATIONS.— This  section  is 
merelv  permissive,  and  not  mandatory.  (Fresno  Nat.  Bank  v. 
Superior  Court,  83  Cal,  491,  24  Pac.  157.) 

It  applies  to  actions  of  tort  as  well  as  matters  of  contract. 
(Lewis  v.  Southern  Pac.  R.  E.  Co.,  66  Cal.  209,  5  Pac.  79;  Tingley 
V.  Times-Mirror  Co.,  144  Cal.  205,  77  Pac.  918.) 

It  gives  to  the  plaintiff  the  right  to  elect  either  to  sue 
the  corporation  in  the  county  where  the  contract  is  made,  or  is 
to  be  performed,  or  where  the  obligation  or  liability  arises,  or 
the  breach  occurs,  or  in  the  county  where  the  principal  place 


431  CONSTiTUTioisr  of  1879.      Art.  XII,  §  16 

of  business  of  the  corporation  is  situated.     (Trezevant  v.  Strong 
Co.,  102  Cal.  47,  36  Pae.  395.) 

An  action  to  recover  damages  for  trespass  upon  real  prop- 
erty may  be  brought  in  the  county  of  the  principal  place  of 
the  corporation  defendant.  (Miller  &  Lux  v.  Kern  County  Land 
Co.,  134  Cal.  586,  66  Pae.  856.) 

An  action  may  be  commenced  against  a  corporation  in  the 
county  where  the  contract  was  made,  or  where  it  was  to  be  per- 
formed. (Bank  of  Yolo  v.  Sperry  Flour  Co.,  141  Cal.  314,  65 
L.  R.  A.  90',  74  Pae.  855.) 

The  right  to  sue  a  corporation  in  the  county  where  the  con- 
tract was  made  only  applies  when  the  corporation  is  the  sole 
defendant  in  the  case.  (Griffin  etc.  Co.  v.  Magnolia  etc.  Co., 
107  Cal.  378,  40  Pae.  495.) 

An  association  of  persons  organized  for  a  particular  purpose, 
although  not  formerly  a  corporation,  is  included  in  this  section. 
The  word  "association"  does  not  necessarily  mean  an  associa- 
tion possessing  corporate  powers  and  privileges.  (Kendrick  v. 
Diamond  etc.  Min.  Co.,  94  Cal.  137,  29  Pae.  324.) 

Under  this  section  an  action  for  libel  may  be  maintained  in 
the  county  in  which  the  plaintiff  resides,  when  the  newspaper 
is  circulated  in  that  county  but  published  in  another.  (Brady 
V.  Times-Mirror  Co.,  106  Cal.  56,  39  Pae.  209;  Tingley  v.  Times- 
Mirror  Co.,  144  Cal.  205,  77  Pae.  918.) 

But  where  the  plaintiff  sues  other  persons  than  the  corpora- 
tion publishing  the  paper,  he  waives  the  provisions  of  this  sec- 
tion.    (Brady  v.  Times-Mirror  Co.,  106  Cal.  56,  39  Pae.  209.) 

An  action  against  a  corporation  for  leave  to  redeem  real  es- 
tate is  properly  brought  in  the  county  where  the  real  property  is 
situated.  (Baker  v.  Fireman's  Fund  Ins.  Co.,  73  Cal.  182,  14 
Pae.  686.) 

In  an  action  against  a  corporation  for  damages  for  breach  of 
contract,  the  defendant  is  entitled  to  a  change  of  place  of  trial 
to  the  county  in  which  its  principal  place  of  business  is  situated, 
when  the  county  in  which  the  action  is  brought  is  not  the  one 
in  which  the  contract  was  made,  or  was  to  be  performed,  or  in 
which  the  obligation  arose,  or  in  which  the  principal  place  of 
business  is  situated.  (Cohn  v.  Central  Pae.  R.  R.  Co.,  71  Cal. 
488,  12  Pae.  498.) 

If  this  provision  should  be  construed  as  denying  a  corporation 
the  right  to  a  change  of  venue  in  cases  in  which  a  natural  per- 


Art.  XII,  §  17      CONSTITUTION  OP  1879.  432 

son  is  given  such  right,  it  would  be  in  violation  of  the  fourteenth 
amendment  to  the  constitution  of  the  United  States.  (Grocers' 
etc.  Union  v.  Kern  etc.  Co.,  150  Cal.  466,  89  Pac.  120.) 

When  it  cannot  be  said  from  the  facts  set  forth  in  the  com- 
plaint that  the  contract  involved  was  made,  or  was  to  be  per- 
formed, or  that  the  liability  arose  or  breach  occurred  in  the 
county  where  the  action  was  commenced,  the  corporation  is  en- 
titled to  a  change  of  venue  to  the  county  of  its  principal  place 
of  business.  (Krogh  v.  Pacific  Gateway  etc.  Co.,  11  Cal.  App. 
237,  104  Pac.  698.) 

When  an  act  of  negligence  is  committed  by  a.  corporation, 
the  action  may  be  brought  in  the  county  where  committed. 
(Pittman  v.  Carstenbrook,  11  Cal.  App.  224,  104  Pac.  699.) 

When  an  action  is  brought  against  a  foreign  corporation  and 
individuals,  the  action  may  be  transferred  to  the  county  of  the 
residence  of  individuals,  although  the  corporation  did  not  join 
in  the  motion  for  a  change  of  venue.  (Pittman  v.  Carstenbrook, 
11  Cal.  App.  2.24,  104  Pac.  699.) 

A  corporation  has  an  absolute  right  to  have  an  action  re- 
moved to  its  place  of  residence,  (Eddy  v.  Houghton,  6  Cal.  App. 
85,  &1  Pac.  397.) 

This  section  only  applies  to  domestic  corporations,  and  has  no 
application  to  foreign  corporations.  (Waechter  v.  Atchison  etc. 
By.  Co.,  10  Cal.  App.  70,  101  Pac.  41.) 

Transportation  companies,  rights  and  liabilities  of. 

Sec.  17.  All  railroad,  canal,  and  other  transporta- 
tion companies  are  declared  to  be  common  carriers,  and 
subject  to  legislative  control.  Any  association  or  cor- 
poration, organized  for  the  purpose,  under  the  laws  of 
this  state,  shall  have  the  right  to  connect  at  the  state  line 
with  railroads  of  other  states.  Every  railroad  company 
shall  have  the  right  with  its  road  to  intersect,  connect 
with  or  cross  any  other  railroad,  and  shall  receive  and 
transport  each  the  other's  passengers,  tonnage,  and  cars, 
without  delay  or  discrimination. 


433  CONSTITUTION  OF  1879.      Art.  XII,  §  18 

EAILTIOADS. — The  legislature  may  regulate  railroad  cross- 
ings. (Pittsburgh  etc.  E.  R.  Co.  v.  Southwest  etc.  By.  Co.,  77 
Pa.  173.) 

It  may  require  railroad  companies  to  ring  a  hell  or  sound  a 
whistle  at  a  crossing.  (Galena  R.  R.  Co.  v.  Appleby,  28  111.  283; 
Galena  R.  R.  Co.  v.  Loomis,  13  111.  548,  56  Am.  Dec.  471.) 

It  may  regulate  the  speed  of  trains  in  a  city.  (Chicago  etc. 
R.  R.  Co.  V.  Haggerty,  67  111.  113.) 

It  may  require  them  to  erect  fences  and  cattle-guards.  (Suy- 
dam  V.  Moore,  8  Barb.  358;  Waldron  v.  Railroad  Co.,  8  Barb. 
390;  New  Albany  etc.  Co.  v.  Tilton,  12  Ind.  3,  74  Am.  Dec.  195; 
Madison  etc.  R.  R.  Co.  v.  Whiteneck,  8  Ind.  217;  Ohio  etc.  R.  R. 
Co.  V.  McClelland,  25  111.  140;  Kansas  etc.  R.  R.  Co.  v.  Mower, 
16  Kan.  573;  Jones  v.  G.  etc.  R.  R.  Co.,  16  Iowa,  6;  Indianapolis 
R.  R.  Co.  V.  Kercheval,  16  Ind.  84;  Nichols  v.  Somerset  etc.  R.  R. 
Co.,  43  Me.  356;  Winona  etc.  R.  R.  Co.  v.  Waldron,  11  Minn. 
515,  83  Am.  Dec.  100;  Gorman  v.  Pacific  R.  R.  Co.,  26  Mo.  441, 
72  Am.  Dec.  220;  Blair  v.  M.  etc.  R.  R.  Co.,  20  Wis.  254;  Pennsyl- 
vania R.  R.  Co.  V.  Riblet,  66  Pa.  164,  5  Am.  Rep.  360.) 

A  railroad  company  can  be  compelled  to  exercise  its  assumed 
duties  and  powers.  (Madera  Ry.  Co.  v.  Raymond  Granite  Co., 
3  Cal.  App.  668,  87  Pac.  27.) 

This  provision  is  not  self -executing  in  the  sense  of  authorizing 
the  taking  of  land  by  a  railroad  corporation,  regardless  of  its 
charter  powers  and  of  the  statute  providing  for  condemnation. 
(Boca  etc.  R.  R.  v.  Sierra  Valleys  R.  R.,  2  Cal.  App.  546,  84  Pac, 
S98.) 

Officers  of  corporations,  restriction  as  to  interests. 

Sec.  18.  No  president,  director,  officer,  agent,  or 
employee  of  any  railroad  or  canal  company  shall  be 
interested,  directly  or  indirectly,  in  the  furnishing  of 
material  or  supplies  to  such  company,  nor  in  the  busi- 
ness of  transportation  as  a  common  carrier  of  freight 
or  passengers  over  the  works  owned,  leased,  controlled, 
or  worked  by  such  company,  except  such  interest  in  the 

Constitution — 28 


Art.  XII,  §§  19,  20    CONSTITUTION  OF  1879.  434 

business  of  transportation  as  lawfully  flows  from  the 
ownership  of  stock  therein. 

Free  passes  on  railroads  prohibited  to  state  officials. 

Sec.  19.  No  railroad  or  other  transportation  com- 
pany shall  grant  free  passes,  or  passes  or  tickets  at  a  dis- 
count, to  any  person  holding  any  office  of  honor,  trust, 
or  profit  in  this  state;  and  the  acceptance  of  any  such 
pass  or  ticket,  by  a  member  of  the  legislature  or  any 
public  officer,  other  than  railroad  commissioner,  shall 
work  a  forfeiture  of  his  office. 

RAILROAD  PASSES.— As  to  the  nature  of  a  proceeding  to  re- 
move an  officer  for  accepting  a  railroad  pass,  see  People  v.  Su- 
perior Court,  114  Cal.  466,  46  Pac.  383. 

Fares  and  freights  to  be  regulated  by  government. 

Sec.  20.  No  railroad  or  other  transportation  com- 
pany shall  raise  any  rate  of  charge  for  the  transporta- 
tion of  freight  or  passengers  or  any  charge  connected 
therewith  or  incidental  thereto,  under  any  circum- 
stances whatsoever,  except  upon  a  showing  before  the 
railroad  commission  provided  for  in  this  constitution, 
that  such  increase  is  justified,  and  the  decision  of  the 
said  commission  upon  the  showing  so  made  shall  not  be 
subject  to  review  by  any  court  except  upon  the  question 
whether  such  decision  of  the  commission  will  result  in 
confiscation  of  property.  (Amendment  approved  Octo- 
ber 10,  1911.) 


435  CONSTITUTION  OF  1879.      Art.  XII,  §  21 

[ORIGINAL  SECTION.] 
Sec.  20.  No  railroad  company  or  other  common  carrier  shall 
combine  or  make  any  contract  with  the  owners  of  any  vessel 
that  leaves  port  or  makes  port  in  this  state,  or  with  any  com- 
mon carrier,  by  which  combination  or  contract  the  earnings  of 
one  doing  the  carrying  are  to  be  shared  by  the  other  not  doing 
the  carrying.  And  whenever  a  railroad  corporation  shall,  for 
the  purpose  of  competing  with  any  other  common  carrier,  lower 
its  rates  for  transportation  of  passengers  or  freight  from  one 
point  to  another,  such  reduced  rates  shall  not  be  again  raised 
or  increased  from  such  standard  without  the  consent  of  the  gov- 
ernmental authority  in  which  shall  be  vested  the  power  to  regu- 
late fares  and  freights. 

COMPETITION. — Where  a  railroad  company  lowers  its  pas- 
senger rates  in  order  to  compete  with  another  road,  and  after- 
ward raises  them  without  the  consent  of  the  railroad  commis- 
sioners, such  commissioners  have  no  jurisdiction  to  require  a 
restoration  of  the  lower  rate.  (Edson  v.  Southern  Pae.  Co.,  133 
Cal.  25,  65  Pac.  15.) 

The  object  of  this  provision  was  to  foster  legitimate  competi- 
tion by  preventing  destructive  comi>etition.  (Edson  v.  South- 
ern Pacific  R.  R.  Co.,  144  Cal.  182,  77  Pac.  894.) 

Rates  are  not  lowered  for  the  purpose  of  competing  with  any 
other  common  carrier  within  the  meaning  of  this  section,  when 
they  are  merely  lowered  in  self-defense  to  meet  a  lower  de- 
structive rate  first  inaugurated  by  a  rival  railroad  company. 
(Edson  V.  Southern  Pacific  R.  R.  Co.,  144  Cal.  182,  77  Pac.  894.) 

A  railroad  lowers  its  rates  within  the  meaning  of  this  sec- 
tion by  establishing  limited  tickets  at  reduced  rates  which  are 
used  by  ninety-five  per  cent  of  its  passengers,  although  no  stop- 
over privileges  are  given  and  liability  for  baggage  is  limited, 
and  unlimited  tickets  are  still  kept  on  sale.  (Edson  v.  South- 
ern Pacific  R.  R.  Co.,  144  Cal.  182,  77  Pac.  894.) 

Discrimination  in  charges  by  carriers  forbidden. 

Sec.  21.  No  discrimination  in  charges  or  facilities  for 
transportation  shall  be  made  by  any  railroad  or  other 


Art.  XII,  §  21      CONSTITUTION  OF  1879.  436 

transportation  company  between  places  or  persons,  or  in 
the  facilities  for  the  transportation  of  the  same  classes 
of  freight  or  passengers  within  this  state.  It  shall  be 
unlawful  for  any  railroad  or  other  transportation  com- 
pany to  charge  or  receive  any  greater  compensation  in 
the  aggregate  for  the  transportation  of  passengers  or  of 
like  kind  of  property  for  a  shorter  than  for  a  longer 
distance  over  the  same  line  or  route  in  the  same  direc- 
tion, the  shorter  being  included  within  the  longer  dis- 
tance, or  to  charge  any  greater  compensation  as  a 
through  rate  than  the  aggregate  of  the  intermediate 
rates.  Provided,  however,  that  upon  application  to  the 
railroad  commission  provided  for  in  this  constitution 
such  company  may,  in  special  cases,  after  investigation, 
be  authorized  by  such  commission  to  charge  less  for 
longer  than  for  shorter  distances  for  the  transportation 
of  persons  or  property  and  the  railroad  commission 
may  from  time  to  time  prescribe  the  extent  to  which 
such  company  may  be  relieved  from  the  prohibition  to 
charge  less  for  the  longer  than  for  the  shorter  haul. 
The  railroad  commission  shall  have  power  to  authorize 
the  issuance  of  excursion  and  commutation  tickets  at 
special  rates.  Nothing  herein  contained  shall  be  con- 
strued to  prevent  the  railroad  commission  from  ordering 
and  compelling  any  railroad  or  other  transportation 
company  to  make  reparation  to  any  shipper  on  account 
of  the  rates  charged  to  said  shipper  being  excessive  or 
discriminatory,  provided  no  discrimination  will  result 


437  CONSTITUTION  OF  1879.      Art.  XII,  §  22 

from  sucli  reparation.     (Amendment  approved  October 
10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  21.  No  discrimination  in  charges  or  facilities  for 
transportation  shall  be  made  by  any  railroad  or  other  transpor- 
tation company  between  places  or  persons,  or  in  the  facilities 
for  the  transportation  of  the  same  classes  of  freight  or  passen- 
gers within  this  state,  or  coming  from  or  going  to  any  other 
state.  Persons  and  property  transported  over  any  railroad,  or 
by  any  other  transportation  company  or  individual,  shall  be 
delivered  at  any  station,  landing,  or  port,  at  charges  not  ex- 
ceeding the  charges  for  the  transportation  of  persons  and  prop- 
erty of  the  same  class,  in  the  same  direction,  to  any  more  dis- 
tant station,  port,  or  landing.  Excursion  and  commutation 
tickets  may  be  issued  at  special  rates. 

FREIGHTS  AND  FARES. — The  provision  of  this  section  aa 
to  excursion  or  commutation  tickets  is  not  intended  to  modify 
section  20  of  this  article;  but  is  simply  a  qualification  of  the 
preceding  clause  of  this  section.  (Edson  v.  Southern  Pacific 
R.  R.  Co.,  144  Cal.  182,  77  Pac.  894.) 

Railroad  commission,  organization  of. 

Sec.  22.  There  is  hereby  created  a  railroad  commis- 
sion which  shall  consist  of  five  members  and  which  shall 
be  known  as  the  railroad  commission  of  the  state  of 
California.  The  commission  shall  be  appointed  by  the 
governor  from  the  state  at  large;  provided,  that  the 
legislature,  in  its  discretion,  may  divide  the  state  into 
districts  for  the  purpose  of  such  appointments,  said  dis- 
tricts to  be  as  nearly  erpial  in  population  as  practica- 
ble; and  provided  further  that  the  three  commissioners 


Art.  XII,  §  22      CONSTITUTION  OF  1879.  438 

in  office  at  the  time  this  section  takes  effect  shall  serve 
out  the  term  for  which  they  were  elected,  and  that  two 
additional  commissioners  shall  be  appointed  by  the  gov- 
ernor immediately  after  the  adoption  of  this  section,  to 
hold  office  during  the  same  term.  Upon  the  expiration 
of  said  term,  the  term  of  office  of  each  commissioner 
thereafter  shall  be  six  years,  except  the  commissioners 
first  appointed  hereunder  after  such  expiration,  one  of 
whom  shall  be  appointed  to  hold  office  until  January  1, 
1917,  two  until  January  1,  1919,  and  two  until  January 
1,  1921.  Whenever  a  vacancy  in  the  office  of  commis- 
sioner shall  occur,  the  governor  shall  forthwith  appoint 
a  qualified  person  to  fill  the  same  for  the  unexpired 
term.  Commissioners  appointed  for  regular  terms  shall, 
at  the  beginning  of  the  term  for  which  they  are  ap- 
pointed and  those  appointed  to  fill  vacancies,  shall,  im- 
mediately upon  their  appointment,  enter  upon  the  du- 
ties of  their  offices.  The  legislature  shall  fix  the  salaries 
of  the  commissioners,  but  pending  such  action  the  sal- 
aries of  the  commissioners,  their  officers  and  employees 
shall  remain  as  now  fixed  by  law.  The  legislature  shall 
have  the  power,  by  a  two-thirds  vote  of  all  members 
elected  to  each  house,  to  remove  any  one  or  more  of  said 
commissioners  from  office  for  dereliction  of  duty  or 
corruption  or  incompetency.  All  of  said  commissioners 
shall  be  qualified  electors  of  this  state,  and  no  person 
in  the  employ  of  or  holding  any  official  relation  to  any 
person,  firm  or  corporation,  which  said   person,  firm  or 


439  CONSTITUTION  OF  1879.      Art.  Xll,  ^  22 

corporation  is  subject  to  regulation  by  said  railroad  com- 
mission and  no  person  owning  stock  or  bonds  of  any 
such  corporation  or  who  is  in  any  manner  pecuniarily 
interested  therein,  shall  be  appointed  to  or  hold  the 
office  of  railroad  commissioner.  No  vacancy  in  the  com- 
mission shall  impair  the  right  of  the  remaining  commis- 
sioners to  exercise  all  the  powers  of  the  commission. 
The  act  of  a  majority  of  the  commissioners  when  in  ses- 
sion as  a  board  shall  be  deemed  to  be  the  act  of  the  com- 
mission; but  any  investigation,  inquiry  or  hearing 
which  the  commission  has  power  to  undertake  or  to  hold 
may  be  undertaken  or  held  by  or  before  any  commis- 
sioner designated  for  the  purpose  by  the  commission, 
and  every  order  made  by  a  commissioner  so  desig- 
nated, pursuant  to  such  inquiry,  investigation  or  hear- 
ing, when  approved  or  confirmed  by  the  commission 
ordered  filed  in  its  office,  shall  be  deemed  to  be  the  order 
of  the  commission. 

Said  commission  shall  have  the  power  to  establish 
rates  of  charges  for  the  transportation  of  passengers  and 
freight  by  railroads  and  other  transportation  companies, 
and  no  railroad  or  other  transportation  company  shall 
charge  or  demand  or  collect  or  receive  a  greater  or  less 
or  different  compensation  for  such  transportation  of 
passengers  or  freight,  or  for  any  service  in  connection 
therewith,  between  the  points  named  in  any  tariff  of 
rates,  established  by  said  commission,  than  the  rates, 
fares  and  charges  which   are  specified   in   such  tariff. 


Art.  XII,  §  22      CONSTITUTION  OP  1879.  440 

The  commission  shall  have  the  further  power  to  examine 
books,  records  and  papers  of  all  railroad  and  other 
transportation  companies;  to  hear  and  determine  com- 
plaints against  railroad  and  other  transportation  com- 
panies; to  issue  subpoenas  and  all  necessary  process  and 
send  for  persons  and  papers ;  and  the  commission  and 
each  of  the  commissioners  shall  have  the  power  to  ad- 
minister oaths,  take  testimony  and  punish  for  contempt 
in  the  same  manner  and  to  the  same  extent  as  courts  of 
record ;  the  commission  may  prescribe  a  uniform  system 
of  accounts  to  be  kept  by  all  railroad  and  other  trans- 
portation companies. 

No  provision  of  this  constitution  shall  be  construed  as 
a  limitation  upon  the  authority  of  the  legislature  to  con- 
fer upon  the  railroad  commission  additional  powers  of 
the  same  kind  or  different  from  those  conferred  herein 
which  are  not  inconsistent  with  the  powers  conferred 
upon  the  railroad  commission  in  this  constitution,  and 
the  authority  of  the  legislature  to  confer  such  additional 
powers  is  expressly  declared  to  be  plenary  and  unlimited 
by  any  provision  of  this  constitution. 

The  provisions  of  this  section  shall  not  be  construed 
to  repeal  in  whole  or  in  part  any  existing  law  not  incon- 
sistent herewith,  and  the  "Railroad  Commission  Act" 
of  this  state  approved  February  10,  1911,  shall  be  con- 
strued with  reference  to  this  constitutional  provision 
and  any  other  constitutional  provision  becoming  opera- 
tive concurrently  herewith.     And  the  said  act  shall  have 


441  CONSTITUTION  OP  1879.      Art.  XII,  §  22 

the  same  force  and  effect  as  if  the  same  had  beeu  passed 
after  the  adoption  of  this  provision  of  the  constitution 
and  of  all  other  provisions  adopted  concurrently  here- 
with, except  that  the  three  commissioners  referred  to  in 
said  act  shall  be  held  and  construed  to  be  the  five  com- 
missioners provided  for  herein.  (Amendment  ap- 
proved October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  22.  The  state  shall  be  divided  into  three  districts  as 
nearly  equal  in  population  as  practicable,  in  each  of  which  one 
railroad  commissioner  shall  be  elected  by  the  qualified  electors 
thereof  at  the  regular  gubernatorial  elections,  whose  salary 
shall  be  fixed  by  law,  and  whose  term  of  office  shall  be  four 
years,  commencing  on  the  first  Monday  after  the  first  day  of 
January  next  succeeding  their  election.  Said  commissioners 
shall  be  qualified  electors  of  this  state  and  of  the  district  from 
which  they  are  elected,  and  shall  not  be  interested  in  any  rail- 
road corporation,  or  other  transportation  company,  as  stock- 
holder, creditor,  agent,  attorney  or  employee;  and  the  act  of 
a  majority  of  said  commissioners  shall  be  deemed  the  act  of 
said  commission.  Said  commissioners  shall  have  the  power,  and 
it  shall  be  their  duty,  to  establish  rates  of  charges  for  the 
transportation  of  passengers  and  freight  by  railroad  or  other 
transportation  companies,  and  publish  the  same  from  time  to 
time,  with  such  changes  as  they  may  make;  to  examine  the 
books,  records,  and  papers  of  all  railroad  and  other  transporta- 
tion companies,  and  for  this  purpose  they  shall  have  power  to 
issue  subpoenas  and  all  other  necessary  process;  to  hear  and 
determine  complaints  against  railroad  and  other  transportation 
companies,  to  send  for  persons  and  papers,  to  administer  oaths, 
take  testimony,  and   punish  for  contempt  of  their  orders  and 


Art.  XII,  §  22     CONSTITUTION  OP  1879.  442 

processes,  in  the  same  manner  and  to  the  same  extent  as  eourts 
of  record,  and  enforce  their  decisions  and  correct  abuses  through 
the  medium  of  the  courts.  Said  commissioners  shall  prescribe 
a  uniform  system  of  accounts  to  be  kept  by  all  such  corpora- 
tions and  companies.  Any  railroad  corporation  or  transporta- 
tion company  which  shall  fail  or  refuse  to  conform  to  such 
rates  as  shall  be  established  by  such  commissioners,  or  shall 
charge  rates  in  excess  thereof,  or  shall  fail  to  keep  their  ac- 
counts in  accordance  with  the  system  prescribed  by  the  com- 
mission, shall  be  fined  not  exceeding  twenty  thousand  dollars 
for  each  offense,  and  every  officer,  agent,  or  employee  of  any 
such  corporation  or  company,  who  shall  demand  or  receive  rates 
in  excess  thereof,  or  who  shall  in  any  manner  violate  the  pro- 
visions of  this  section,  shall  be  fined  not  exceeding  five  thou- 
sand dollars,  or  be  imprisoned  in  the  county  jail  not  exceeding 
one  year.  In  all  controversies,  civil  or  criminal,  the  rates  of 
fares  and  freights  established  by  said  commission  shall  be 
deemed  conclusively  just  and  reasonable,  and  in  any  action 
against  such  corporation  or  company  for  damages  sustained  by 
charging  excessive  rates,  the  plaintiff,  in  addition  to  the  actual 
damage,  may,  in  the  discretion  of  the  judge  or  jury,  recover 
exemplary  damages.  Said  commission  shall  report  to  the  gov- 
ernor, annually,  their  proceedings,  and  such  other  facts  as  may 
be  deemed  important.  Nothing  in  this  section  shall  prevent 
individuals  from  maintaining  actions  against  any  of  such  com- 
panies. The  legislature  may,  in  addition  to  any  penalties  herein 
prescribed,  enforce  this  article  by  forfeiture  of  charter  or  other- 
wise, and  may  confer  such  further  powers  on  the  commissioners 
as  shall  be  necessary  to  enable  them  to  perform  the  duties  en- 
joined on  them  in  this  and  the  foregoing  section.  The  legisla- 
ture shall  have  power,  by  a  two-thirds  vote  of  all  the  members 
elected  to  each  house,  to  remove  any  one  or  more  of  said  com- 
missioners from  ofiice,  for  dereliction  of  duty,  or  corruption,  or 


Art.  XII,  Sec.  23.    Insert  at  Page  443. 

Sec.  23.  Every  private  corporation,  and  every  in- 
dividual or  association  of  individuals,  owning,  operat- 
ing, managing,  or  controlling  any  commercial  rail- 
road, interurban  railroad,  street  railroad,  canal,  pipe 
line,  plant,  or  equipment,  or  any  part  of  such  railroad, 
canal,  pipe  line,  plant  or  equipment  within  this  state, 
for  the  transportation  or  conveyance  of  passengers, 
or  express  matter,  or  freight  of  any  kind,  including 
crude  oil,  or  for  the  transmission  of  telephone  or  tele- 
graph messages,  or  for  the  production,  generation, 
transmission,  delivery  or  furnishing  of  heat,  light, 
water  or  power  or  for  the  furnishing  of  storage  or 
wharfage  facilities,  either  directly  or  indirectly,  to  or 
for  the  public,  and  every  common  carrier,  is  hereby 
declared  to  l)e  a  public  utility  subject  to  such  control 
and  regulation  by  the  railroad  commission  as  may  be 
provided  by  the  legislature,  and  every  class  of  private 
corporations,  individuals,  or  associations  of  individuals 
hereafter  declared  by  the  legislature  to  be  public 
utilities  shall  likewise  be  subject  to  such  control  and 
regulation.  The  railroad  commission  shall  have  and 
exercise  such  power  and  jurisdiction  to  supervise  and 
regulate  public  utilities,  in  the  State  of  California, 
and  to  fix  the  rates  to  be  charged  for  commodities 
furnished,  or  services  rendered  by  public  utilities  as 
shall  be  conferred  upon  it  by  the  legislature,  and  the 
right  of  the  legislature  to  confer  powers  upon  the 
railroad  commission  respecting  public  utitlities  is 
hereby  declared  to  be  plenary  and  to  be  unlimited  by 
any  provision  of  this  Constitution.  From  and  after 
the    passage    by    the    legislature    of   laws    conferring 


powers  upon  the  railroad  commission  respecting  pub- 
lic utilities,  all  powers  respecting  such  public  utilities 
vested  in  boards  of  supervisors,  or  municipal  councils, 
or  other  governing  bodies  of  the  several  counties,  cities 
and  counties,  cities  and  towns,  in  this  state,  or  in  any 
commission  created  by  law  and  existing  at  the  time 
of  the  passage  of  such  laws,  shall  cease  so  far  as  such 
powers  shall   conflict   with   the   powers   so   conferred 
upon  the  railroad  commission ;  provided,  however,  that 
this   section   shall  not   affect   such  powers   of   control 
over  public  utilities  as  relate  to  the  making  and  en- 
forcement of  local,   police,   sanitary  and  other  regu- 
lations, other  than  the  fixing  of  rates,  vested  in  any 
city  and  county  or  incorporated  city  or  town  as,  at 
an  election  to  be  held  pursuant  to  l&w,  a  majority  of 
the  qualified  electors  of  such  city  and  county,  or  in- 
corporated  city   or   town,   voting   thereon,   shall   vote 
to  retain,  and  until  such  election  such  powers  shall 
continue  unimpaired;  but  if  the  vote  so  taken  shall 
not  favor  the  continuation  of  such  powers  they  shall 
thereafter   vest   in   the   railroad    commission   as   pro- 
vided by  law;  and  provided,  further,  that  where  any 
such  city  and  county  or  incorporated  city  or  town  shall 
have  elected  to  continue  any  of  its  powers  to  make 
and    enforce   such   local,    police,    sanitary    and    other 
regulations,  other  than  the  fixing  of  rates,  it  may,  by 
vote    of   a   majority    of   its   qualified   electors   voting 
thereon,  thereafter  surrender  such  powers  to  the  rail- 
road   commission    in    the    manner    prescribed    by    the 
legislature;   and  provided,   further,   that  this   section 
shall  not  affect  the  right  of  any  city  and  county  or 
incorporated  city  or  town  to  grant  franchises  for  pub- 


lie  utilities  upon  the  terms  and  conditions  and  in  the 
manner  prescribed  by  law.  Nothing  in  this  section 
shall  be  construed  as  a  limitation  upon  any  power 
conferred  upon  the  railroad  commission  by  any  pro- 
vision of  this  Constitution  now  existing  or  adopted 
concurrently  herewith.  (Amendment  adopted  Novem- 
ber 3,  19140 


443  CONSTITUTION  OF  1879.      Art.  XII,  §  23 

incompetency;  and  whenever,  from  any  cause,  a  vacancy  in 
office  shall  occur  in  said  commission,  the  governor  shall  fill  the 
same  by  the  appointment  of  a  qualified  person  thereto,  who  shall 
hold  office  for  the  residue  of  the  uncxi>ired  term,  and  until  his 
successor  shall  have  been  elected  and  qualified. 

RAILROAD  COMMISSIONERS.— This  section  should  be  con- 
strued to  extend  the  supervision  of  the  commission  to  all  per- 
sons engaged  in  the  business  of  transportation,  whether  as  cor- 
porations, joint-stock  companies,  partnerships,  or  individuals. 
(Moran  v.  Eoss,  79  Cal.  159,  21  Pac.  547.) 

This  section  did  not  repeal  section  490  of  the  CivU  Code,  al- 
though that  section  refers  to  section  489  of  the  same  code, 
which  was  superseded  by  this  section.  (Robinson  v.  Southern 
Pac.  R.  R.  Co.,  105  Cal.  526,  38  Pac.  94,  722,  28  L.  R.  A.  773.) 

A  statute  may  authorize  tne  appointment  of  commissioners 
to  determine  the  duties  and  obligations  of  railroad  companies. 
(Portland  R.  R.  Co.  v.  Railway  Co.,  46  Me.  69.) 

The  commission  has  no  jurisdiction  over  a  street  railroad  cor- 
poration operated  in  a  municipality.  (Board  of  Railroad 
Commrs.  v.  Market  St.  Ry.  Co.,  132  Cal.  677,  64  Pac.  1065.) 

The  commission  has  no  jurisdiction,  upon  a  complaint  that  a 
railroad  company  lowered  its  passenger  rates  in  order  to  com- 
pete with  another  road,  and  afterward  raised  them  without 
the  consent  of  the  commission,  to  require  a  restoration  of  the 
lower  rate.  (Edson  v.  Southern  Pac.  Co.,  133  Cal.  25,  65  Pac. 
15.) 

Railroad  commission,  regulation  of  public  utilities. 

Sec.  23.  Every  private  corporation,  and  every  indi- 
vidual or  association  of  individuals,  owning,  operating, 
managing  or  controlling  any  commercial  railroad,  inter- 
urban  railroad,  street  railroad,  canal,  pipe-line,  plant, 
or  equipment,  or  any  part  of  such  railroad,  canal,  pipe- 
line, plant  or  equipment  within  this  state,  for  the  trans- 
portation or  conveyance  of  passengers,  or  express  mat- 


Art.  XII,  §  23      CONSTITUTION  OF  1879.  414 

tor,  or  freight  of  any  kind,  including  crude  oil,  or  for  the 
transmission  of  telephone  or  telegraph  messages,  or  for 
the  production,  generation,  transmission,  delivery  or 
furnishing  of  heat,  light,  water  or  power  or  for  the  fur- 
nishing of  storage  or  wharfage  facilities,  either  directly 
or  indirectly,  to  or  for  the  public,  and  every  common  car- 
rier, is  hereby  declared  to  be  a  public  utility  subject  to 
such  control  and  regulation  by  the  railroad  commission 
as  may  be  provided  by  the  legislature,  and  every  class  of 
private  corporations,  individuals,  or  associations  of  indi- 
viduals hereafter  declared  by  the  legislature  to  be  public 
utilities  shall  likewise  be  subject  to  such  control  and 
regulation.  The  railroad  commission  shall  have  and  ex- 
ercise such  power  and  jurisdiction  to  supervise  and 
regulate  public  utilities,  in  the  state  of  California,  and 
to  fix  the  rates  to  be  charged  for  commodities  furnished, 
or  services  rendered  by  public  utilities  as  shall  be  con- 
ferred upon  it  by  the  legislature,  and  the  right  of  the 
legislature  to  confer  powers  upon  the  railroad  commis- 
sion respecting  public  utilities  is  hereby  declared  to  be 
plenary  and  to  be  unlimited  by  any  provision  of  this 
constitution. 

From  and  after  the  passage  by  the  legislature  of  laws 
conferring  powers  upon  the  railroad  commission  respect- 
ing public  utilities,  all  powers  respecting  such  public 
utilities  vested  in  boards  of  supervisors,  or  municipal 
councils,  or  other  governing  bodies  of  the  several  coun- 
ties, cities  and  counties,  cities  and  towns,  in  this  state,  or 


445  CONSTITUTION  OP  1879.      Art.  XII,  §  23 

in  any  commission  created  by  law  and  existing  at  the 
time  of  the  passage  of  such  laws,  shall  cease  so  far  as 
such  powers  shall  conflict  with  the  powers  so  conferred 
upon  the  railroad  commission;  provided,  however,  that 
this  section  shall  not  affect  such  powers  of  control  over 
any  public  utility  vested  in  any  city  and  county,  or  in- 
corporated city  or  town  as,  at  an  election  to  be  held  pur- 
suant to  laws  to  be  passed  hereafter  by  the  legislature, 
a  majority  of  the  qualified  electors  voting  thereon  of  such 
city  and  county,  or  incorporated  city  or  town,  shall  vote 
to  retain,  and  until  such  election  such  powers  shall  con- 
tinue Unimpaired ;  but  if  the  vote  so  taken  shall  not 
favor  the  continuation  of  such  powers  they  shall  there- 
after vest  in  the  railroad  commission  as  provided  by 
law;  and  provided,  further  that  where  any  such  city 
and  county  or  incorporated  city  or  town  shall  have 
elected  to  continue  any  powers  respecting  public  utili- 
ties, it  may,  by  vote  of  a  majority  of  its  qualified  electors 
voting  thereon,  thereafter  surrender  such  powers  to  the 
railroad  commission  in  the  manner  to  be  prescribed  by 
the  legislature;  or  if  such  municipal  corporation  shall 
have  surrendered  any  powers  to  the  railroad  commission, 
it  may,  by  like  vote,  thereafter  reinvest  itself  with  such 
power.  Nothing  in  this  section  shall  be  construed  as  a 
limitation  upon  any  power  conferred  upon  the  railroad 
commission  by  any  provision  of  this  constitution  now 
existing  or  adopted  concurrently  herewith.  (Amend- 
ment approved  October  10,  1911.) 


Art.  XII,  §  24      CONSTITUTION  OF  1879.  446 

[ORIGINAL  SECTION.] 
Sec.  23.  Until  the  legislature  shall  district  the  st'ate,  the 
following  shall  be  the  railroad  districts:  The  first  district  shall 
be  composed  of  the  counties  of  Alpine,  Amador,  Butte,  Cala- 
veras, Colusa,  Del  Norte,  El  Dorado,  Humboldt,  Lake,  Ijassen, 
Mendocino,  Modoc,  Napa,  Nevada,  Placer,  Plumas,  Sacramento, 
Shasta,  Sierra,  Siskiyou,  Solano,  Sonoma,  Sutter,  Tehama, 
Trinity,  Yolo,  and  Yuba,  from  which  one  railroad  commissioner 
shall  be  elected.  The  second  district  shall  be  composed  of  the 
counties  of  Marin,  San  Francisco,  and  San  Mateo,  from  which 
one  railroad  commissioner  shall  be  elected.  The  third  district 
shall  be  composed  of  the  counties  of  Alameda,  Contra  Costa, 
Fresno,  Inyo,  Kern,  Los  Angeles,  Mariposa,  Merced,  Mono, 
Monterey,  San  Benito,  San  Bernardino,  San  Diego,  San  Joaquin, 
San  Luis  Obispo,  Santa  Barbara,  Santa  Clara,  Santa  Cruz, 
Stanislaus,  Tulare,  Tuolumne,  and  Ventura,  from  which  one 
railroad  commissioner  shall  be  elected. 

Legislature  to  pass  laws  to  enforce  this  article. 

Sec.  24.     The  legislature  shall  pass  all  laws  necessary 
for  the  enforcement  of  the  provisions  of  this  article. 


Art.  XII,  Sec.  23a.     Insert  at  Page  446. 

Sec.  23a.  The  railroad  commission  shall  have  and 
exercise  such  power  and  jurisdiction  as  shall  he  con- 
ferred upon  it  by  the  legislature  to  fix  the  just  com- 
pensation to  l)e  paid  for  the  taking-  of  any  property 
of  a  public  utility  in  eminent  domain  proceedings  by 
the  state  or  any  county,  city  and  county,  incorporated 
city  or  town,  or  municipal  water  district,  and  the 
right  of  the  legislature  to  confer  such  powers  upon 
the  railroad  commission  is  hereby  declared  to  be 
plenary  aud  to  be  unlimited  by  any  provision  of  this 
constitution.  All  acts  of  the  legislature  heretofore 
adopted,  which  are  in  accordance  herewith,  are  hereby 
confirmed  and  declared  valid.  (New  section  added 
by  amendment  adopted  November  3,  1914.) 


Art.  XIII,  Sec.  1.    Insert  at  Page  447. 

Sectiou  1.  All  property  in  the  state  except  as  other- 
wise in  this  Constitution  provided,  not  exempt  under 
the  laws  of  the  United  States,  shall  be  taxed  in  pro- 
portion to  its  value,  to  be  ascertained  as  provided  by- 
law, or  as  hereinafter  provided.  The  word  "prop- 
erty," as  used  in  this  article  and  section,  is  hereby 
declared  to  include  moneys,  credits,  bonds,  stocks, 
dues,  franchises,  and  all  other  matters  and  things,  real, 
personal,  and  mixed,  capable  of  private  ownership; 
provided,  that  a  mortgage,  deed  of  trust,  contract,  or 
other  obligation  by  which  a  debt  is  secured  when  land 
is  pledged  as  security  for  the  payment  thereof,  to- 
gether with  the  money  represented  by  such  debt,  shall 
not  be  considered  property  subject  to  taxation;  and 
further  provided,  that  property  used  for  free  public 
libraries  and  free  museums,  growing  crops,  property 
used  exclusively  for  public  schools,  and  such  as  may 
belong  to  the  United  States,  this  state,  or  to  any 
county,  city  and  county,  or  municipal  corporation 
within  this  state  shall  be  exempt  from  taxation,  ex- 
cept such  lands  and  the  improvements  thereon  located 
outside  of  the  county,  city  and  county  or  municipal 
corporation  owning  the  same  as  were  subject  to  taxa- 
tion at  the  time  of  the  acquisition  of  the  same  by  said 
( ounty,  city  and  county  or  municipal  corporation ; 
provided,  that  no  improvements  of  any  character  what- 
ever constructed  by  any  county,  city  and  county  or 
municipal  corporation  shall  be  subject  to  taxation. 
All  lands  or  improvements  thereon,  belonging  to  any 
county,  city  and  county  or  municipal  corporation,  not 
exempt  from   taxation,   shall   be   assessed   by  the   as- 


sessor  of  the  county,  city  and  county  or  municipal 
corporation  in  which  said  lands  or  improvements  are 
located,  and  said  assessment  shall  be  subject  to  review, 
equalization  and  adjustment  by  the  state  board  of 
equalization.  The  legislature  may  provide,  except  in 
the  case  of  credits  secured  by  mortgage  or  trust  deed, 
for  a  deduction  from  credits  of  debts  due  to  bona 
fide  residents  of  this  state.  (Amendment  adopted 
November  3,  1914.) 


447  CONSTITUTION  OP  1879.      Art.  XIII,  §  1 

"   ARTICLE  XIII. 

EEVENUE  AND  TAXATION, 

§     1.     Taxation  to  be  in  proportion  to  value. 

§     li.  ITnited  States  army,  navy,  marine  and  revenue  service. 

§     li.  Churches  exempt  from  taxation. 

§     If.  Bonds  of  state  and  municipalities  exempt  from  taxation. 

Land  and  improvements  to  be  separately  assessed. 

Seetionized  and  unseetionized  land,  how  assessed. 

Securities,  taxable. 

Contract  of  borrower  to  pay  tax  on  loan  void. 

Power   of   taxation   cannot   be  surrendered. 

Payment  of  taxes  by  installments. 

Annual  statement  of  property  to  be  given. 

State  board  of  equalization. 
§   10.     Property,  where  assessed. 

§   10}.  Personal  property  to  extent  of  $100  exempt. 
§   11.     Income  taxes. 
§   12.     Poll  tax. 

§   12J.  Young  trees  and  vines  exempt  from  taxation. 
§  13.     Laws  to  be  passed  by  legislature. 
§   14.     Taxation  for  state  purposes. 

Taxation  to  be  in  proportion  to  value. 

Section  1.  All  property  in  the  state  except  as  other- 
wise in  this  constitution  provided,  not  exempt  under  the 
laws  of  the  United  States,  shall  be  taxed  in  proportion 
to  its  value,  to  be  ascertained  as  provided  by  law,  or  as 
hereinafter  provided.  The  woVd  "property,"  as  used 
in  this  article  and  section,  is  hereby  declared  to  include 


§ 

2. 

§ 

3. 

§ 

4. 

§ 

5. 

§ 

6. 

§ 

7. 

"b 

8. 

§ 

9. 

Art.  XIII,  §  1      CONSTITUTION  OF  1879.  448 

moneys,  credits,  bonds,  stocks,  dues,  franchises,  and  all 
other  matters  and  things,  real,  personal,  and  mixed, 
capable  of  private  ownership ;  provided,  that  a  mort- 
gage,  deed  of  trust,  contract,  or  other  obligation  by 
which  a  debt  is  secured  when  land  is  pledged  as  security 
for  the  payment  thereof,  together  with  the  moneyrep- 
resented  by  such  debt,  shall  not  be  considered  j2ropexJty 
subject  to  taxation;  and  further  provided,  that  prop- 
erty used  for  free  public  libraries  and  free  museums, 
growing  crops,  property  used  exclusively  for  public 
schools,  and  such  as  may  belong  to  the  United  States, 
this  state,  or  to  any  county  or  municipal  corporation 
within  this  state  shall  be  exempt  from  taxation.  The 
legislature  may  provide,  except  in  the  case  of  credits 
secured  by  mortgage  or  trust  deed,  for  a  deduction  from 
credits  of  debts  due  to  bona  fide  residents  of  this  state. 
(Amendment  adopted  November  8,  1910.) 

[AMENDMENT  OF  1894.] 

Section  1.  All  property  in  the  state,  not  exempt  under  the 
laws  of  the  United  States  shall  be  taxed  in  proportion  to  its 
value,  to  be  ascertained  as  provided  by  law.  The  word  "prop- 
erty," as  used  in  this  article  and  section,  is  hereby  declared 
to  include  moneys,  credits,  bonds,  stocks,  dues,  franchises,  and 
all  other  matters  and  things,  real,  personal,  and  mixed,  capable  of 
private  ownership;  provided  that  property  used  for  free  public 
libraries  and  free  museums,  growing  crops,  property  used  ex- 
clusively for  public  schools,  and  such  as  may  belong  to  the 
United  States,  this  state,  or  to  any  county  or  municipal  cor- 
poration within  this  state,  shall  be  exempt  from  taxation.     The 


449  CONSTITUTION  OF  1879.      Art.  XITI,  §  1 

legislature  may  provide,  except  in  case  of  credits  secured  by 

mortgage  or  trust  deed,  for  a  deduction  from  credits  of  debts 

due  to  bona  fide  residents  of  this  state.  (Amendment  adopted 
November  6,  1894.) 

[OEIGINAL  SECTION.] 
Section  1.  All  property  in  the  state,  not  exempt  under  the 
laws  of  the  United  States,  shall  be  taxed  in  proportion  to  its 
value,  to  be  ascertained  as  provided  by  law.  The  word  "prop- 
erty," as  used  in  this  article  and  section,  is  hereby  declared 
to  include  moneys,  credits,  bonds,  stocks,  dues,  franchises,  and 
all  other  matters  and  things,  real,  personal,  and  mixed,  capable 
of  private  ownership;  provided,  that  growing  crops,  property 
used  exclusively  for  public  schools,  and  such  as  may  belong 
to  the  United  States,  this  state,  or  to  any  county  or  municipal 
corporation  within  this  state,  shall  be  exempt  from  taxation. 
The  legislature  may  provide,  except  in  the  case  of  credits  se- 
cured by  mortgage  or  trust  deed,  for  a  deduction  from  credits  of 
debts  due  to  bona  fide  residents  of  this  state. 

TAXATION — What  is. — The  provisions  of  this  article  are 
limitations  upon  the  power  of  the  legislature,  and  are  mandatory. 
(People  V.  McCreery,  34  Cal.  432;  People  v.  Gerke,  35  Cal.  677.) 

This  section  is  not  self -executing,  but  merely  fixes  the  lia- 
bility of  property  to  taxation,  and  the  standard  upon  which  it  is 
based,  but  confides  the  duty  of  prescribing  the  machinery  by 
which  to  ascertain  the  value  to  the  legislature.  (McHenry  v. 
Downer,  116  Cal.  20,  47  Pac.  779,  43  L.  R.  A.  737;  De  Witt  v. 
Hays,  2  Cal.  463,  56  Am.  Dec.  352.) 

To  make  an  outlying  school  district  a  part  of  a  city  high 
school  district  to  the  extent  of  making  it  liable  for  taxes  im- 
posed by  the  municipality  of  which  it  was  not  a  part  and  in  the 
election  of  whose  taxing  oflicers  it  had  no  voice,  would  violate 
the  cardinal  rule  that  there  shall  be  no  taxation  without 
representation.  (Mooncy  v.  Supervisors,  2  Cal.  App.  65,  83  Pac. 
165.) 

Constitution — 29 


Art.  XIII,  §  1      CONSTITUTION  OP  1879.  450 

It  is  a  cardinal  principle  that  there  shall  be  no  taxation  with- 
out representation.  (Mooney  v.  Supervisors,  2  Cal.  App.  65,  83 
Pac.   1(35.) 

The  power  of  the  legislature  in  the  matter  of  taxation  is  un- 
limited, except  as  restricted  by  constitutional  provisions,  and 
extends  to  proceedings  for  assessments  for  local  improvements 
upon  any  basis  of  apportionment  which  the  legislature  may 
select;  and  the  apportionment  does  not  depend  upon  any  special 
benefit  to  the  taxpayer.  (In  re  Madera  Irr.  Dist.,  92  Cal.  296, 
27  Am.  St.  Rep.  106,''2S  Pac.  272,  675,  14  L.  R.  A.  755.) 

The  provisions  of  this  article  have  no  application  to  assess- 
ments for  local  improvements.  (Turlock  Irr.  Dist.  v.  Williams, 
76  Cal.  360,  18  Pac.  379.) 

This  provision  only  applies  to  direct  taxation  on  property 
as  such.     (People  v.  Coleman,  4  Cal.  46,  60  Am.  Dec.  581.) 

The  taxing  power  is  an  incident  of  sovereignty,  the  exercise 
of  which  belongs  exclusively  to  every  state,  and  attaches  alike 
upon  everything  which  comes  within  its  jurisdiction.  (People 
V.  Coleman,  4  Cal.  46,  60  Am.  Dec.  581.) 

A  tax  is  a  charge  upon  persons  or  property,  to  raise  money 
for  public  purposes.  It  is  not  founded  upon  contract  and  does 
not  establish  the  relation  of  debtor  and  creditor,  between  the 
taxpayer  and  the  state.     (Perry  v.  Washburn,  20  Cal.  318.) 

The  words  "taxation"  and  "taxed"  relate  to  such  general 
taxes  upon  all  property  as  are  levied  to  defray  the  ordinary 
expenses  of  the  state,  county,  town,  and  municipal  governments, 
and  not  to  assessments  levied  on  lots  fronting  on  a  street  to 
pay  the  expense  of  its  improvement.  (Emery  v.  San  Francisco 
Gas  Co.,  28  Cal.  345.) 

The  words  "taxation"  and  "assessments"  do  not  have  the 
same  signification.      (Taylor  v.  Palmer,  31  Cal.  240.) 

"Taxation"  is  the  power  to  impose  taxes  upon  the  property 
of  the  citizen  for  the  support  of  the  government.  (Taylor  v. 
Palmer,  31  Cal.  340;  People  v.  McCreery,  34  Cal.  432.) 

The  rate  of  taxation  for  state  purposes  must  be  uniform 
throughout  the  state.  (People  v.  McCreery,  34  Cal.  432. 
People  V.  Coleman,  4  Cal.  46,  60  Am.  Dec.  581;  High  v.  Shoe- 
maker, 22  Cal.  363,  overruled.) 

A  charge  by  the  ganger  of  the  port  of  San  Francisco  upoa 
wine,  for  services  as  gauger,  is  not  a  tax.  CAdd.i.=oa  y,  Sanlnier, 
19  Cal.  82.) 


451  coxsTiTUTiON  OF  1879.      Art.  XIII,  §  1 

The  provision  of  the  fee  bill  of  1895,  requiring  the  payment 
of  one  dollar  for  each  one  thousand  dollars  in  excess  of  three 
thousand  dollars  of  the  appraised  value  of  an  estate  imposes 
a  tax,  and  is  in  violation  of  this  section  in  imposing  an  extra- 
ordinary tax  in  addition  to  the  equal  and  uniform  tax  to  which 
alone  property  is  liable.  (Fatjo  v.  Pfister,  117  Cal.  83,  48  Pac. 
1012.) 

The  act  of  1893,  imposing  a  tax  of  five  dollars  on  every  hun- 
dred dollars  of  the  market  value  of  property  collaterally  in- 
herited, bequeathed,  or  devised,  where  its  value  exceeds  five 
hundred  dollars,  is  constitutional.  (In  re  Wilmerding,  117  Cal. 
281,  49  Pac.  181.) 

The  collateral  inheritance  tax  is  not  subject  to  the  provision 
that  all  property  shall  be  taxed  in  proportion  to  its  value,  as  it  is 
in  the  nature  of  an  excise  tax.  (In  re  Wilmerding,  117  Cal. 
281,  49  Pac.  181.) 

Property. — Bonds  of  foreign  corporations  are  assessable  in  the 
state  of  the  owner's  domicile.  (Estate  of  Fair,  128  Cal.  607, 
61  Pac.  184;  Mackay  v.  San  Francisco,  128  Cal.  678,  61  Pac. 
382.) 

A  seat  in  a  stock  exchange  board  is  not  taxable  property. 
(San  Francisco  v.  Anderson,  103  Cal.  69,  42  Am.  St.  Rep.  98,  36 
Pac.  1034.) 

A  mere  right  of  way  for  a  pipe-line  of  a  water  company,  en- 
tirely unconnected  with  anv  jnivilege  to  take  tolls,  is  not  a  fran- 
chise. (Spring  Valley  W.  "W.  v.  Barber,  99  Cal.  36,  33  Pac.  735, 
21  L.  R.  A.  416.) 

Fruit  trees  are  not  growing  crops  within  the  meaning  of  this 
section,  and  are  subject  to  taxation.  (Cottle  v.  Spitzcr,  65  Cal. 
456,  52  Am.  Rep.  305,  4  Pac.  435.) 

Stock  of  a  California  corporation,  whose  tangible  property  is 
situated  in  another  state,  is  taxable  in  this  state  in  the  posses- 
sion of  a  resident  of  this  state.  (San  Francisco  v.  Flood,  64  Cal. 
504,  2  Pac.  264;  San  Francisco  v.  Fry,  63  Cal.  470.) 

Stock  in  a  corporation  whose  property  is  situated  out  of  the 
state  is  assessable  in  this  state.  The  constitution  is  not  to  be 
construed  to  mean  that  "stocks"  are  not  to  be  taxed  wlien  they 
represent  property  situated  out  of  the  state.  (Canfield  v. 
County  of  Los  Angeles,  157  Cal.  617,  108  Pac.  705.) 

The  assessment  of  the  stock  of  a  corporation  must  ner-essarily 
include   every  element   of  value  of  its  property,   including  its 


Art.  XIII,  §  1      CONSTITUTION  OP  1879.  452 

goodwill,  franchise,  and  dividend  earning  power.  (Crocker  v. 
Scott,  149  Cal.  575,  87  Pac.  102.) 

The  possessory  right  to  a  mining  claim  is  properly  assessed  as 
real  estate.  (Bakersfield  &  Fresno  Oil  Co.  v.  Kern  County,  144 
Cal.  148,  77  Pac.  892.) 

A  vessel  registered  out  of  the  state,  and  never  here  except 
transiently  in  the  course  of  her  voyages  for  the  purpose  of  re- 
ceiving and  discharging  cargo,  is  not  "in  the  state"  within  the 
meaning  of  this  section,  altiiough  owned  in  part  by  residents  of 
this  state.     (San  Francisco  v.  Talbot,  63  Cal.  485.) 

A  vessel  is  taxable  at  its  "home  port"  as  defined  in  section 
4141  of  the  United  States  Eevised  Statutes.  (Olson  v.  San 
Francisco,  148  Cal.  80,  113  Am.  St.  Kep.  191,  82  Pac.  850,  2  L. 
E.  A.,  N.  S.,  197,  7  Ann.  Cas.  443.) 

A  franchise  to  collect  rates  for  water  is  taxable  under  this 
section.     (Spring  Valley  W.  W.  v.  Schottler,  62  Cal.  69.) 

The  franchise  of  a  railroad  company  is  property  subject  to 
taxation  and  is  not  exempt  by  reason  of  its  being  a  means  or 
instrument  employed  by  Congress  to  carry  into  operation  the 
powers  of  the  general  government.  (Central  Pac.  E.  E.  Co.  v. 
Board  of  Equalization,  60  Cal.  35.) 

A  franchise  merely  to  be  a  corporation  is  property,  which  is 
assessable  to  the  corporation.  (Bank  of  California  v.  San  Fran- 
cisco, 142  Cal.  276,  100  Am.  St.  Eep.  130,  75  Pac.  832,  64  L.  E.  A. 
918.) 

As  to  the  proper  method  of  arriving  at  the  value  of  a 
franchise  to  be  a  corporation  for  the  purpose  of  taxation,  see 
Bank  of  California  v.  San  Francisco,  142  Cal.  276,  100  Am.  St. 
Eep.  130,  75  Pac.  832,  64  L.  E.  A.  918. 

The  creative  franchise  to  bs  a  corporation  is  taxable.  (San 
Joaquin  etc.  Co.  v.  Merced  County,  2  Cal.  App.  593,  84  Pac. 
285.) 

Franchises  are  properly  subject  to  taxation.  (San  Joaquin 
etc.  Co.  V.  Merced  County,  2  Cal.  App.  593,  84  Pac.  285.) 

Checks  drawn  upon  the  treasurer  of  the  United  States,  pay- 
able on  demand,  as  a  mode  of  paying  an  obligation  of  the 
United  States,  are  taxable  as  solvent  credits.  (Hibernia  etc. 
Soc.  V.  San  Francisco,  139  Cal.  205,  96  Am.  St.  Eep.  100,  72  Pac. 
920,  5  L.  E.  A.,  N.  S.,  608.) 


453  CONSTITUTION  OP  1879.      Art.  XIII,  §  1 

The  capital  or  capital  stock  of  a  corporation  is  taxable 
against  the  corporation.  (San  Francisco  v.  Spring  Valley  W. 
W.,  5-4   Cal.   571.) 

Personal  property  in  the  state,  owned  by  nonresidents,  and 
upon  which  they  pay  taxes  in  the  state  of  their  domicile,  is 
taxable  in  this  state.  (Minturn  v.  Hays,  2  Cal.  590,  56  Am. 
Dec.  366.) 

A  municipal  corporation  has  no  power  to  impose  a  license 
tax  upon  a  railroad  company  engaged  in  interstate  commerce, 
and  the  mere  fact  that  the  tax  is  imposed  on  a  branch  line 
does  not  render  the  tax  valid,  where  the  branch  is  a  part  of 
the  transcontinental  line.  (San  Bernardino  v.  Southern  Pac. 
Co.,  107  Cal.  524,  40  Pac.  796,  29  L.  R.  A.  327.) 

The  possession  of  and  claim  to  public  land  is  property. 
(People  V.  Black  Diamond  etc.  Min.  Co.,  37  Cal.  54;  People  v. 
Cohen,  31  Cal.  210.) 

The  word  "property"  is  used  in  its  ordinary  and  popular 
sense,  and  includes  not  only  visible  and  tangible  property,  but 
also  choses  in  action,  such  as  solvent  debts  secured  by  mortgage. 
(People  v.  Eddy,  43  Cal.  331,  13  Am.  Eep.  143;  Lick  v.  Austin, 
43  Cal.  590;  Savings  etc.  Soc.  v.  Austin,  46  Cal.  415;  People  v. 
Ashbury,  46  Cal.  523;  San  Francisco  v.  La  Societe  etc.,  131  Cal. 
612,  63  Pac.  1016.  But  see  Bank  of  Mendocino  v.  Chalfant, 
51  Cal.  369,  471;  People  v.  Hibernia  Bank,  51  Cal.  243,  21  Am. 
Rep.  704.) 

This  is  true  although  the  debts  are  secured  by  pledge  of 
property  exempt  from  taxation.  (Security  Sav.  Bank  v.  San 
Francisco,  132  Cal.  599,  64  Pac.  898.) 

Money  is  property  subject  to  taxation.  (People  v.  Dunn,  59 
Cal.  328.) 

The  holder  of  solvent  credits  secured  by  collateral  security 
of  personal  property  is  entitled  to  have  his  assessment  upou 
such  credits  reduced  by  the  amount  of  his  indebtedness  to  bona 
fide  residents  of  the  state,  contracts  of  security  on  personal 
property  not  being  mortgages  or  deeds  of  trust  within  the  mean- 
ing of  those  words  in  the  clause  excepting  such  credits  from 
the  deduction  allowed  of  debts  due  bona  fide  residents  of  the 
state.  (Bank  of  Willows  v.  County  of  Glenn,  155  Cal.  352,  101 
Pac.  13.) 


Art.  XIII,  §  1      CONSTITUTION  OF  1879.  454 

Bonds  owned  by  a  foreign  insurance  company  doing  business 
in  this  state  and  deposited  with  a  banker  in  pursuance  to  law 
are  taxable.      (People  v.  Home  Ins.  Co.,  29  Cal.  533.) 

The  estate  of  a  lessee  in  lands  overlying  oil-bearing  strata,  who 
has  the  right  to  the  oil  produced  thereon  upon  paying  a  royalty 
to  the  lessor,  may  be  separately  assessed  for  purposes  of  taxa- 
tion to  the  lessee,  and  the  remainder  of  the  entire  estate  in  the 
land  may  be  separately  assessed  to  the  lessor.  (Graciosa  Oil 
Co.  V.  Santa  Barbara,  155  Cal.  140,  99  Pac.  483,  20  L.  E.  A., 
N.  S.,  211.) 

Public  property. — Public  property  is  not  taxable.  (Doyle  v. 
Austin,  47  Cal.  353;  People  v.  McCreery,  34  Cal.  432;  People  v. 
Doe  G.  1,034,  36  Cal.  220.) 

A  railroad  corporation  cannot  claim  an  exemption  of  its  prop- 
erty lying  within  the  state  from  state  taxation,  because  the  cor- 
poration has  been  subsequently  emjdoyed  by  the  federal  gov- 
ernment in  the  carriage  of  mails,  munitions  of  war,  etc.  (People 
V.   Central  Pac.   E.   E.  Co.,  43   Cal.  398.) 

A  railroad  company  organized  under  the  laws  of  this  state 
to  construct  and  operate  a  railroad  in  this  state,  which  has  sub- 
sequently received  from  the  United.  States  a  franchise  for  the 
same  purpose,  may  be  assessed  upon  its  franchise  derived  from 
the  state.  (People  v.  Central  Pac.  E.  E.  Co.,  105  Cal.  576,  38 
Pac.  905;  Colusa  v.  Glenn,  124  Cal.  498,  57  Pac.  477.  But  see 
People  v.  Central  Pac.  E.  E.  Co.,  83  Cal.  393,  23  Pac.  303.) 

An  act  exempting  school  land  and  lands  of  the  United  States 
from  taxation  does  not  render  the  tax  unequal.  (High  v.  Shoe- 
maker, 22  Cal.  3C3.) 

Bonds  of  the  United  States  are  not  subject  to  taxation. 
(People  V.  Home  Ins.  Co.,  29  Cal.  533.) 

The  property  of  a  reclamation  district  is  public  property  ex- 
empt from  taxation.  (Eeclamation  Dist.  No.  551  v.  Sacramento, 
134  Cal.  477,  66  Pac.  668.) 

The  assessment  of  a  portion  of  a  street  is  void.  (Warren  v. 
San  Francisco,  150  Cal.  167,  88  Pac.  712.) 

A  county  ordinance  imposing  a  license  upon  the  Southern 
Pacific  Eailroad  Company  for  carrying  persons  and  freight  for 
hire  by  means  of  railroad  cars  in  the  county,  is  void  as  a  tax 
upon  the  use  of  the  franchise  granted  by  the  United  States 
government.     Both  the  fianchise  and  the  use  of  it  are  beyond 


455  CONSTITUTION  OF  1879.      Art.  XIII,  §  1 

the  taxing  power  of  the  state.  (San  Benito  Co.  v.  Southern 
Pac.  E.  K. Co..  77  f'.al.  .518,  19  Pac.  827.) 

The  Western  Union  Telegraph  Company  is  one  of  the  instru- 
ments employed  by  the  United  States  government  for  carrying 
into  efifect  its  sovereign  powers,  and  a  tax  upon  its  franchise 
is  void.  (San  Francisco  v.  Western  Union  Tel.  Co.,  96  Cal. 
140,  31  Pac.  10,  17  L.  R.  A.  301;  Western  Union  Tel.  Co.  v. 
Visalia,  149  Cal.  744,  87  Pac.  1023.) 

Whether  or  not  a  federal  franchise  has  been  assessed  is  a 
question  of  fact,  and  conversations  with  members  of  the  board 
of  equalization  on  the  subject  are  not  admissible.  (People  v. 
Central  Pac.  R.  E.  Co.,  10-5  Cal.  576,  38  Pac.  905.) 

National  banks  are  agencies  of  the  federal  government,  and 
are  not  subject  to  the  taxing  power  of  the  state.  (McHenry 
V.  Downer,  il6  Cal.  20,  47  Pac.  779,  45  L.  R.  A.  737.) 

Taxation  of  property  of  a  national  bank,  except  as  permitted 
bv  the  Ignited  States  Revised  Statutes,  is  void.  (First  Nat. 
Bank  v.  San  Francisco,  129  Cal.  96,  61  Pac,  778;  Miller  v.  Heil- 
bron,  58  Cal.   133.) 

The  act  of  the  assessment  of  the  stock  of  national  banks  is 
valid.     (Crocker  v.  Scott,  149  Cal.  575,  87  Pac.  102.) 

Conunerce. — A  tax  upon  every  person  selling  consigned  goods 
from  any  state  in  proportion  to  the  amount  sold  is  not  an  inter- 
ference with  the  power  of  Congress  to  regulate  commerce. 
(People  V.  Coleman,  4  Cal.  46,  60  Am.  Dec.  581.) 

An  act  imposing  a  tax  upon  bills  of  lading  for  the  transporta- 
tion of  gold  or  silver  from  any  point  in  this  state  to  any 
point  without  the  state  is  in  conflict  with  the  provision  of  the 
United  States  constitution  forbidding  the  states  to  levy  any  im- 
posts or  duties  on  imports  or  exports.  (Brumagin  v.  Tillinghast, 
18  Cal.  265,  79  Am.  Dec.  176.) 

An  act  requiring  the  payment  of  a  gauger  for  inspecting 
goods  arriving  at  ports  of  this  state  is  not  in  violation  of  the 
United  States  constitution  forbidding  the  state  to  impose  duties 
on  imports.      (.Addison  v.  Saulnier,  19  Cal.  82.) 

An  act  requiring  a  shipper  to  place  certain  stamps  on  all 
tickets  sold  to  persons  about  to  leave  the  state  is  in  violation 
of  the  commerce  clause  of  the  United  States  constitution,  and 
is  void.  It  is  a  tax  and  not  a  police  regulation.  (People  v. 
Raymond,  34  Cal.  492.) 


Art.  XIII,  §  1      CONSTITUTION  OF  1879.  456 

Exemptions. — The  legislature  has  no  power  to  exempt  any 
property  from  taxation.  (Mackay  v.  San  Francisco,  113  Cal. 
392,  45"Pac.  696;  Minturn  v.  Hays,  2  Cal.  590,  56  Am.  Dec.  366; 
People  V.  McCreerj',  34  Cal.  432;  People  v.  Black  Diamond  etc. 
Min.  Co.,  37  Cal.  54;  Crosby  v.  Lyon,  37  Cal.  242;  People  v. 
Eddy,  43  Cal.  331,  13  Am.  Rep.  143;  People  v.  Latham,  52  Cal. 
598.) 

An  act  authorizing  the  remission  of  a  tax  is  void.  (Wilson  v. 
Supervisors,  47  Cal.  91.) 

An  act  taxing  the  property  of  a  district  for  a  local  improve- 
ment, which  exempts  personal  property  from  its  operation,  is 
unconstitutional,  because  not  levied  on  all  the  property  in  the 
district.     (People  v.  Whyler,  41  Cal.  351.) 

Alfalfa  is  not  included  in  the  exemption  of  "growing  crops." 
(Miller  v.  County  of  Kern,  137  Cal.  516,  70  Pac.  549.) 

The  provisions  of  the  Political  Code  in  regard  to  road  taxes 
are  not  in  violation  of  this  section  because  cities  and  towns  are 
exempted  from  their  operation,  since  this  does  not  exempt  cities 
and  towns  from  the  tax,  but  compels  cities  and  towns  to  main- 
tain their  own  streets  under  the  street  improvement  act.  (Miller 
V.  County  of  Kern,  137  Cal.  516,  70  Pac.  549.) 

The  crediting  of  taxes  heretofore  paid  upon  property  under 
an  invalid  levy  does  not  amount  to  an  exemption  from  taxa- 
tion of  the  property  upon  which  such  taxes  were  paid.  (People 
V.  Latham,  52  Cal.  598.) 

The  legislature  cannot  exempt  from  taxation  a  vessel  having 
its  legal  situs  in  this  state.  (Olson  v.  San  Francisco,  148  Cal. 
80,  113  Am.  St.  Rep.  191,  82  Pac.  850,  2  L.  R.  A.,  N.  S.,  197,  7 
Ann.  Cas.  443.) 

Double  taxation. — The  constitution  forbids  the  double  taxation 
of  property.  (Burke  v.  Badlam,  57  Cal.  594;  Germania  Trust 
Co.  v.  San  Francisco,  128  Cal.  589,  61  Pac.  178;  Estate  of  Fair, 
128  Cal.  607,  61  Pac.  184.) 

Double  taxation  does  not  necessarily  consist  in  assessing  the 
same  property  twice  to  the  same  person,  but  may  consist  in 
requiring  a  double  contribution  to  the  same  tax  on  account  of 
the  same  property,  though  the  assessments  are  to  different  per- 
sons. (Germania  Trust  Co.  v.  San  Francisco,  128  Cal.  589,  61 
Pac.  178;  Estate  of  Fair,  128  Cal.  607,  61  Pac.  184.) 


457  CONSTITUTION  OF  1879.      Art.  XIII.  §  1 

The  inliibition  of  double  taxation  only  applies  to  such  taxa- 
tion by  the  same  government.  (San  Francisco  v.  Fry,  63  Cal. 
470.) 

Because  the  same  subject  matter  has  been  twice  taxed,  it  by 
no  means  follows  that  both  taxes  are  void,  but  to  entitle  a  party 
to  relief  in  the  courts,  it  must  appear  that  the  tax  has  been  once 
paid  or  tendered.     (Savings  etc.  Soc.  v.  Austin,  46  Cal.  41.5.) 

If  land  subject  to  a  mortgage  is  taxed,  and  the  debt  secured 
by  the  mortgage  is  also  taxed,  and  the  tax  on  the  debt  is  paid 
by  the  mortgagee,  the  mortgagor  cannot  complain  of  double  tax- 
ation.    (Lick  V.  Austin,  43  Cal.  590.) 

The  levying  a  tax  upon  money  at  interest,  as  well  as  upon 
the  property  mortgaged  to  secure  it,  does  not  present  a  case  of 
double  taxation  against  the  mortgagee.  (People  v.  Whartenby, 
38  Cal.  461.) 

It  would  be  assessing  the  same  property  twice  to  assess  money 
on  deposit  in  a  savings  bank  to  the  bank  and  also  to  the  de- 
positor.    (Burke  v.  Badlam,  57  Cal.  594.) 

It  would  be  assessing  the  same  property  twice  to  assess  to  a 
corporation  all  of  its  corporate  property,  and  also  to  assess  to 
each  of  the  stockholders  the  shares  held  by  them.  (Burke  v. 
Badlam,  57  Cal.  594.) 

A  balance  of  a  money  account  on  general  deposit  in  a  bank 
outside  of  the  state,  held  by  a  corporation  having  its  principal 
place  of  business  in  this  state,  is  taxable  in  this  state  as  a 
solvent  credit.  (Pacific  Coast  Sav.  Soc.  v.  San  Francisco,  133 
Cal.  14,  65  Pac.  16.) 

It  is  not  double  taxation  to  tax  the  roadbed  and  roadway  of  a 
railroad,  as  they  are  quite  different.  (San  Francisco  etc.  E.  R. 
Co.  v.  State  Board,  60  Cal.  12.) 

Where  all  the  property  of  a  corporation  has  been  assessed  and 
it  owns  none  of  its  capital  stock,  an  assessment  of  "capital"  or 
"capital  stock"  is  void.  (San  Francisco  v.  Spring  Valley  W.  W., 
63  Cal.  524.) 

An  attempt  to  tax  a  seat  in  a  stock  exchange  board,  in  addi- 
tion to  the  taxes  levied  upon  all  the  property  of  the  board,  is 
void  as  an  attempt  at  double  taxation.  (San  Francisco  v.  Ander- 
son, 103  Cal.  69,  42  Am.  St.  Rep.  98,  36  Pac.  1034.) 

Since  a  mortgage  is  assessed  as  an  interest  in  the  land,  to  also 
assess  the  bonds  which  the  mortgage  secures  is  double  taxation. 


Art.  XIII,  §  1      CONSTITUTION  OP  1879.  458 

(Germauia  Trust  Co.  v.  San  Frnncisco,  128  Cal.  589,  CI  Pac.  178j 
Estate  of  Fair,  128  Cal.  607,  61  Pac.  184.) 

The  lender  of  money  is  not  subjected  to  double  taxation  by 
reason  of  the  payment  of  taxes  on  money  loaned  by  him,  and 
on  solvent  debts  due  him  over  his  own  indebtedness.  (People  v. 
McCreery,  34  Cal.  432.) 

The  legislature  may  impose  a  penalty  on  those  who  neglect  to 
have  their  property  assessed  at  the  proper  time;  and  a  law  pro- 
viding for  the  double  taxation  of  property  which  has  escaped 
assessment  in  the  previous  year  is  valid.  (Biddle  v.  Oaks,  59 
Cal.  94.) 

Assessrr.ent. — Assessment  of  property  is  a  function  of  the  exec- 
utive department  of  the  government;  and  the  judiciary  has  no 
power  to  inquire  as  to  the  actual  value  of  property  for  the  pur- 
pose of  taxation,  in  order  to  determine  whether  there  has  been 
misrepresentations  as  to  its  value.  (Clunie  v.  Siebe,  112  Cal. 
593,  44  Pac.  1064.) 

The  provisions  of  this  section  are  self-executing,  and  require 
the  assessor  to  ascertain  the  value  of  the  property  in  the  manner 
now  provided  by  law.      (Hyatt  v.  Allen,  54  Cal.  353.) 

The  provision  of  the  former  constitution  as  to  the  election  of 
assessor  and  tax  collector  was  held  mandatory,  and  restrained 
the  legislature  to  a  particular  mode  of  providing  for  such  ofJicers. 
(People  v.  Kelsey,  34  Cal.  470.) 

Under  the  former  constitution  an  assessment  not  made  by  an 
assessor  elected  by  the  electors  of  the  district  was  void.  (Will- 
iams v.  Corcoran,  46  Cal.  553.) 

This  section  does  not  require  the  value  of  the  property  to  be 
found  after  the  rate  of  taxation  is  fixed.  (People  v.  Latham, 
52  Cal.  598.) 

A  tax  for  school  purposes  must  be  based  upon  an  assessment 
made  by  an  assessor  elected  by  the  qualified  electors  of  the 
school  district.     (People  v.  Stockton  etc.  Co.,  49  Cal.  414.) 

The  legislature  cannot  confer  on  a  state  board  of  equalization 
of  taxes  the  power  to  add  to  or  deduct  from  the  assessed  value 
of  the  property,  as  fixed  by  the  assessor.  (Houghton  v.  Austin, 
47  Cal.  646.) 

The  payment  of  a  tax  cannot  be  resisted  on  the  ground  that 
the  property  on  which  it  was  levied  was  not  assessed  at  its 
true  value.     One  whose  property  is  not  assessed  according  to  its 


459  CONSTITUTION  OF  1879.      Art.  XIII,  §  1 

true  value  must  applv  to  the  board  of  ectualization  for  relief. 
(People  V.  Whyler,  4l"Cal.  351.) 

The  only  mode  in  which  defective  assessments  may  be  cured 
by  the  legislature  is  to  empower  the  assessor  to  correct  the  same. 
(People  V.  Hastings,  34  Cal.  571.) 

The  failure  of  the  assessor  to  assess  certain  property,  whether 
by  reason  of  a  void  statute  or  by  mistake,  does  not  invalidate 
the  assessment.     (People  v.  MeCreery,  34  Cal.  432.) 

The  value  of  a  franchise  of  a  corporation  is  properly  fixed  by 
taking  the  value  of  all  tangible  property  of  the  corporation 
from  the  market  value  of  the  capital  stock.  (Spring  Valley  W. 
W.  V.  Schottler,  62  Cal.  69.) 

A  law  providing  that  taxes  upon  personal  property  unsecured 
by  real  estate  shall  be  collected  at  the  time  of  the  assessment 
is  valid,  although  other  taxes  are  not  pavable  until  several 
months  later.  (Ehode  v.  Siebe,  119  Cal.  518,  51  Pac.  869,  39 
L.  K.  A.  342,  Van  Fleet,  J.,  and  Harrison,  J.,  dissenting;  Pacific 
etc.  Co.  V.  Dalton,  119  Cal.  604,  51  Pac.  1072.) 

Purposes. — The  extent  to  which  the  power  of  taxation  may  be 
exercised  is  left  unlimited,  except  by  legislative  discretion. 
(Stockton  etc.  B.  R.  Co.  v.  Stockton,  41  Cal.  147;  Blanding  v. 
Burr,  13  Cal.  343.) 

The  taxing  power,  whether  it  be  asserted  in  the  form  of  gen- 
eral taxation  or  of  local  assessment,  cannot  be  upheld  when  the 
purpose  in  view  can  be  judicially  seen  to  be  other  than  public. 
(In  re  Market  Street,  49  Cal.  546.) 

The  legislature  may  recognize  a  moral  obligation  as  the  sole 
basis  for  the  imposition  of  taxes.  (Beals  v.  Amador  County, 
35  Cal.  624.) 

Taxation  cannot  be  justified  for  an  object  or  for  the  benefit 
of  a  class  in  which  the  taxpayer  is  directly  excluded  from  par- 
ticipating.     (Hughes  V.  Evving,  93  Cal.  414,  28  Pac.  1067.) 

Licenses. — \  license  fee  or  charge  for  the  transaction  of  any 
business  is  not  a  tax  within  the  meaning  of  this  section.  (Santa 
Barbara  v.  Stearns,  51  Cal.  499.) 

A  license  tax  upon  the  right  to  carry  on  a  particular  trade 
or  business,  imposing  the  same  rate  or  amount  on  all  engaged 
in  the  same  business  regardless  of  the  amount  of  capital  em- 
ployed or  profits  earned,  is  a  valid  exercise  of  the  taxing  power, 
and  is  not  a  tax  upon  property  within  the  meaning  of  this  sec- 


Art.  XIII,  §  1      CONSTITUTION  OF  1879.  460 

tion.     (Los  Angeles  v.  L*os  Angeles  etc.  Co.,  152  Cal.  7G.j,  93 
Pac.  1006.) 

The  constitution  does  not  prohibit  the  legislature  from  author- 
izing municipal  corporations  to  tax  occupations  for  purpose  of 
revenue.  An  ordinance  recjuiring  the  annual  license  of  twenty 
dollars  for  each  street-car  operated  upheld,  although  the  cars 
also  ran  in  an  adioining  town.  (San  Jose  v,  San  Jose  etc.  K. 
E.  Co.,  53  Cal.  475.  People  v.  Coleman,  4  Cal.  46,  60  Am.  Dec. 
581;  Sacramento  v.  Crocker,  16  Cal.  119;  Ex  parte  Hurl,  49  Cal. 
557,  approved.) 

A  municipality  has  no  inherent  power,  by  virtue  of  its  exist- 
ence as  a  municipality,  to  impose  a  license  upon  a  business,  but 
its  power  in  this  respect  comes  from  the  legislature,  and  must 
be  found  in  the  organic  act,  or  necessarily  inferred  from  the 
powers  therein  expressly  granted.  (Ex  parte  Newton,  53  Cal. 
571.) 

An  act  prohibiting  foreigners  from  working  the  gold  mines, 
except  on  condition  of  paying  a  certain  sum  each  month  for  the 
privilege,  imposes  a  license  and  not  a  tax  and  is  valid.  (People 
V.  Naglee,  1  Cal.  232,  52  Am.  Dec.  312.) 

This  provision  applies  only  to  direct  taxation  upon  property, 
and  does  not  prohibit  the  legislature  from  enacting  license  laws. 
(People  V.  Naglee,  1  Cal.  232,  52  Am.  Dec.  312.) 

Assessirents. — The  word  "assessment"  represents  those  local 
burdens  imposed  by  municipal  corporations  upon  property  border- 
ing upon  an  improved  street,  for  the  purpose  of  paying  the  cost 
of  the  improvement,  and  laid  with  reference  to  the  benefit  the 
property  is  supposed  to  receive  from  the  expenditure  of  the 
money.     (Taylor  v.  Palmer,  31  Cal.  240.) 

An  assessment  is  a  special  and  local  charge  upon  property  in 
the  immediate  vicinity  of  municipal  improvements,  predicated 
upon  the  theory  of  benefits,  and  levied  upon  land  or  property 
specially  benefited  by  such  improvements,  while  a  charge  im- 
posed by  law  upon  the  assessed  value  of  all  property  in  a  dis- 
trict is  a  tax,  although  for  a  local  improvement.  (Holley  v. 
Orange  County,  106  Cal.  420,  39  Pac.  790.) 

An  assessment  upon  lots  adjacent  to  a  street  to  pay  for  im- 
provements made  on  the  street,  if  held  to  be  a  tax,  cannot  be 
upheld,  because  it  lacks  the  constitutional  requirement  of  equal- 
ity and  uniformity.  (Creighton  v.  Monson,  27  Cal.  613.  But  see 
Walsh  V.  Mathews,  29  Cal.  124.) 


461  CONSTITUTION  OP  1879.      Art.  XIII,  §  1 

An  assessment  by  an  irrigation  district  upon  the  public  lands 
of  a  city,  which  are  unoccupied  and  uncultivated  lands,  sus- 
ceptible of  cultivation  by  irrigation,  and  which  would  be  bene- 
fited therebj',  is  not  a  tax  within  the  meaning  of  this  section. 
(San  Diego  v.  Linda  Vista  Irr.  Dist.,  108  Cal.  1S9,  41  Pae.  291, 
35  L.  R.  A.  33.) 

An  assessmeut  levied  by  an  irrigation  district,  although  refer- 
able to  the  power  of  taxation,  is  distinct  from  a  tax,  and  is  not 
subject  to  the  constitutional  provisions  respecting  taxation,  and 
may  be  levied  upon  all  real  property,  without  deducting  there- 
from any  mortgages  thereon.  (Trcgea  v.  Owens,  94  Cal.  317,  29 
Pac.  643.) 

An  assessment  for  a  street  improvement  upon  the  front-foot 
system  is  an  exercise  of  the  power  of  taxation.  (Emery  v.  San 
Francisco  etc.  Co.,  28  Cal.  345.) 

This  section  does  not  apply  to  an  assessment  for  a  street  im- 
provement. (Burnett  v.  Sacramento,  12  Cal.  76,  73  Am.  Dec. 
518;  Dovle  v.  Austin,  47  Cal.  353;  Hagar  v.  Supervisors,  47  Cal. 
222;  Chambers  v.  Satterlee,  40  Cal.  497.) 

A  charge  imposed  on  all  property  of  a  district,  to  be  used  in 
constructing  levees  to  protect  the  district  from  overflow,  is  a 
tax  and  not  an  assessment.  (People  v.  Whyler,  41  Cal.  351; 
Williams  v.  Corcoran,  46  Cal.  553;  Smith  v.  Farrelly,  52  Cal.  77.) 

An  "assessment"  for  a  local  improvement  is  a  "tax,"  and, 
while  it  need  not  be  assessed  on  the  ad  valorem  principle,  it 
must  be  equal  and  uniform.  (People  v.  Lynch,  51  Cal.  15,  21 
Am.  Rep.  677.) 

The  fact  that  a  statute  designates  as  a  "tax"  that  which  in 
its  elements  is  an  "assessment"  does  not  make  it  a  "tax." 
(Doyle  V.  Austin,  47  Cal.  353.) 

The  legislature  cannot  levy  an  assessment  not  uniform  and 
equal,  nor  can  it  validate  an  assessment  void  for  want  of  uni- 
formity and  equality.  (People  v.  Lynch,  51  Cal.  15,  21  Am. 
Rep.  677.) 

An  assessment  cannot  be  laid  upon  lots  for  street  work  done 
under  an  abortive  contract  with  the  municipality.  (In  re  Market 
Street,  49  Cal.  54G.) 

The  "front-foot"  method  of  assessment  is  valid.  (Oakland 
etc.  Co.  v.  Rior,  52  Cal.  270;  People  v.  Lynch,  51  Cal.  15,  21  Am. 
Rep.  677;  Walsh  v.  Mathews,  29  Cal.  123;  Iladley  v.  Daguo,  130 
Cal.  207,  62  Pac.  500;  Cohen  v.  Alameda,  124  Cal.  504,  57  Pac. 


Art.  XIII,  §  1      CONSTITUTION  OP  1879.  4G2 

377;  Chambers  v.  Satterlee,  40  Cal.  497;  Emery  v.  San  Francisco 
etc.  Co.,  28  Cal.  345;  Emcw  v.  Bradford,  29  Cal.  75;  Taylor  v. 
Palmer,  31  Cal.  240;  Whiting  v.  Qiiackenbiish,  54  Cal.  300;  Whit- 
ing V.  Townsend,  57  Cal.  515;  Lent  v.  Tillson,  72  Cal.  404,  14 
Pac.  71;  Jennings  v.  Le  Breton,  80  Cal.  8,  21  Pac.  1127;  San 
Francisco  etc.  Co.  v.  Bates,  134  Cal.  39,  66  Pac.  2;  Banaz  v. 
Smith,  133  Cal.  102,  65  Pac.  309.) 

An  act  levying  the  cost  of  a  street  improvement  upon  the  ad- 
jacent property,  in  accordance  with  the  assessed  value  of  the 
land,- is  valid.  (Burnett  v.  Sacramento,  12  Cal.  76,  73  Am.  Dec. 
518.) 

The  legislature  may  provide  for  a  local  public  improvement 
for  the  benefit  of  a  portion  of  the  state,  and  may  tax  all  land 
within  a  limited  district,  notwithstanding  some  of  the  property 
of  the  district  will  not  receive  any  benefit,  and  some  property 
outside  of  the  district  may  be  incidentally  benefited.  (In  re 
Madera  Irr.  Dist.,  92  Cal.  296,  27  Am.  St.  Eep.  106,  28  Pac.  272, 
14  L.  R.  A.  755.) 

An  assessment  upon  specified  property  can  be  supported  only 
upon  the  ground  that  the  property  taxed  is  benefited  by  the  im- 
provement.    (In  re  Market  Street,  49  Cal.  546.) 

The  fact  that  levees  built  to  protect  the  land  of  a  district 
from  overflow  injure  some  of  the  land  instead  of  benefiting  it 
does  not  render  the  tax  unequal  or  void  for  want  of  uniformity. 
(People  V.  AVhylcr,  41  Cal.  351.) 

A  tax  levied  on  the  property  of  a  given  district,  to  pay  for  a 
local  improvement,  which  is  assessed  upon  the  parcels  of  prop- 
erty in  the  district  in  proportion  to  the  benefit  each  parcel  de- 
rives from  the  work,  is  unconstitutional.  Such  tax  must  be 
levied  on  all  property  according  to  its  value.  (People  v.  Whyler, 
41  Cal.  351.) 

An  owner  may  be  made  personally  liable  for  the  expense  of 
a  street  improvement.  (Walsh  v.  Mathews,  29  Cal.  123.  Creigh- 
ton  v.  Manson,  27  Cal.  613,  overruled.) 

An  act  requiring  the  owner  of  a  lot  to  keep  the  street  in  front 
of  it  in  repair  after  it  has  been  planked  and  giaded  is  valid. 
(Hart  V.  Gavcn,  12  Cal.  477.) 

The  fact  that  a  town  is  included  within  an  irriT-ation  district 
does  not  invalidate  the  district,  since  even  though  the  land  is 
not  susceptible   of  irrigation,  it   may  be   benefited   by   the  im- 


46^  CONSTITUTION  OP  1879.     Art.  XIII,  §  1^4 

provement.     (In  re  Madora  Irr.  Dist.,  92  Cal.  296,  27  Am.  St. 
Eep.  106,  28  Pac.  272,  14  L.  R.  A.  755.) 

Recovery  of  taxes. — An  action  to  recover  municipal  taxes  is 
an  action  upon  a  liability  created  by  statute,  and  is  barred  in 
three  years;  and  where  it  has  the  force  of  a  judgment,  it  is 
barred  in  five  years.  (San  Dicao  v.  Higsins,  115  Cal.  170,  46 
Pae.  923.) 

United  States  army,  navy,  marine  and  revenue  service. 
Sec.  11/4.  The  property  to  the  amount  of  one  thou- 
sand dollars  of  every  resident  in  this  state  who  has 
served  in  the  army,  navy,  marine  corps,  or  revenue 
marine  service  of  the  United  States  in  time  of  war,  and 
received  an  honorable  discharge  therefrom;  or  lacldng 
such  amount  of  property  in  his  own  name,  so  much  of  the 
property  of  the  wife  of  any  such  person  as  shall  be  neces- 
sary to  equal  said  amount;  and  property ^to  the  amount 
of  one  thousand  dollars  of  the  widow  resident  in  this 
state,  or  if  there  be  no  such  widow,  of  the  widowed 
mother  resident  in  this  state,  of  every  person  who  has  so 
served  and  has  died  either  during  his  term  of  service  or 
after  receiving  honorable  discharge  from  said  service; 
and  the  property  to  the  amount  of  one  thousand  dollars 
of  pensioned  widows,  fathers,  and  mothers,  resident  in 
this  state,  of  soldiers,  sailors,  and  marines  who  served 
in  the  army,  navy,  or  marine  corps,  or  revenue  marine 
service  of  the  United  States,  shall  be  exempt  from  taxa- 
tion ;  provided,  that  this  exemption  shall  not  apply  to 
any  person  named  herein  owning  property  of  the  value 
of  five  thousand  dollars  or  more,  or  where  the  wife  of 


Art.  XIII,  §§  11/2-2    CONSTITUTION  OF  1879.  464 

such  soldier  or  sailor  owns  property  of  the  value  of  five 
thousand  dollars  or  more.  No  exemption  shall  be  made 
under  the  provisions  of  this  act  of  the  property  of  a 
person  who  is  not  a  legal  resident  of  the  state.  (Amend- 
ment approved  October  10,  1911.) 

Churches  exempt  from  taxation. 

Sec.  11/^.  All  buildings,  and  so  much  of  the  real 
property  on  which  they  are  situated  as  may  be  required 
for  the  convenient  use  and  occupation  of  said  buildings, 
when  the  same  are  used  solely  and  exclusively  for  reli- 
gious worship,  shall  be  free  from  taxation;  provided, 
that  no  building  so  used  which  may  be  rented  for  re- 
ligious purposes  and  rent  received  by  the  owner  there- 
for, shall  be  exempt  from  taxation.  (Amendment 
adopted  November  6,  1900.) 

Bonds  of  state  and  municipalities  exempt  from  taxa- 
tion. 

Sec.  1%.  All  bonds  hereafter  issued  by  the  state  of 
California,  or  by  any  county,  city  and  county,  municipal 
corporation,  or  district  (including  school,  reclamation, 
and  irrigation  districts)  within  said  state,  shall  be  free 
and  exempt  from  taxation.  (Amendment  adopted  No- 
vember 4,  1902.) 

Land  and  improvements  to  be  separately  assessed. 

Sec.  2.  Land,  and  the  improvements  thereon,  shall 
be    separately    assessed.     Cultivated    and    uncultivated 


Art.  XIII,  Sec.  la.    Insert  at  Pag:e  464. 

See.  la.  Any  educational  institution  of  collegiate 
grade,  within  the  State  of  California,  not  conducted 
for  profit,  shall  hold  exempt  from  taxation  its  build- 
ings and  eciuipment,  its  grounds  within  which  its 
l)uildings  are  located,  not  exceeding  one  hundred 
acres  in  area,  its  securities  and  income  used  exclu- 
sively for  the  purposes  of  education.  (New  section 
added  by  amendment  adopted  November  3,  1914.) 


Art.  XIII,  Sec.  4.     Insert  at  Page  465. 

Sec.  4.  All  vessels  of  more  than  fifty  tons  burden 
registered  at  any  port  in  this  state  and  engaged  in 
the  transportation  of  freight  or  passengers,  shall  be 
exempt  from  taxation  except  for  state  purposes,  until 
and  including  the  first  day  of  January,  nineteen  hun- 
dred thirty-five.  (New  sertion  added  by  amendment 
adopted  November  3,   1914.) 


7- 


465  CONSTITUTION  OF  1879.     Art.  XIII,  §§  3, 4 

land,  of  the  same  quality,  and  similarly  situated,  shall 
be  assessed  at  the  same  value. 

ASSESSMENT  OF  LAND. — An  assessment  of  land  claimed 
and  occupied  by  a  railroad  company  as  a  right  of  way,  together 
with  the  track  and  all  superstructures  and  substructures,  without 
any  separate  assessment  of  land  and  improvement,  is  void. 
(California  etc.  R.  E.  Co.  v.  Mecartney,  104  Cal.  616,  38  Pac. 
448.) 

The  constitution  leaves  it  to  the  legislature  to  define  "improve- 
ments," and  alfalfa,  not  being  included  in  the  legislative  defini- 
tion, must  be  taxed  as  realty  and  not  as  improvements.  (Miller 
V.  County  of  Kern,  137  Cal.  516,  70  Pac.  549.) 

Sectionized  and  unsectionized  land,  how  assessed. 

Sec.  3.  Every  tract  of  land  containing  more  than 
six  hundred  and  forty  acres,  and  which  has  been  sec- 
tionized by  the  United  States  government,  shall  be  as- 
sessed, for  the  purposes  of  taxation,  by  sections  or  frac- 
tions of  sections.  The  legislature  shall  provide  by  law 
for  the  assessment,  in  small  tracts,  of  all  lands  not  sec- 
tionized by  the  United  States  government. 

Securities,  taxable. 

Sec.  4.  This  section  was  repealed  by  amendment 
adopted  November  8,  1910.  The  section  so  repealed  was 
as  follows : 

Sec.  4,  A  mortgage,  deed  of  trust,  contract,  or  other  obliga- 
tion by  which  a  debt  is  secured,  shall,  for  the  purposes  of  assess- 
ment and  taxation,  be  deemed  and  treated  as  an  interest  in  the 
property  affected  thereby.  Except  as  to  railroad  and  other 
quasi  public  corporations,  in  case  of  debts  so  secured,  the  value 
of  the  property  affected  by  such  mortgage,  deed  of  trust,  con- 
Coustitutioa — 30 


Art.  XIII,  §  4      CONSTITUTION  OF  1879.  466 

tract,  or  obligation,  less  the  value  of  such  security,  shall  be 
assessed  and  taxed  to  the  owner  of  the  property,  and  the  value 
of  such  security  shall  be  assessed  and  taxed  to  the  owner  thereof, 
in  the  county,  city,  or  district  in  which  the  property  affected 
thereby  is  situate.  The  taxes  so  levied  shall  be  a  lien  upon 
the  property  and  security,  and  may  be  paid  by  either  party  to 
such  security;  if  paid  by  the  owner  of  the  security,  the  tax  so 
levied  upon  the  property  affected  thereby  shall  become  a  part 
of  the  debt  so  secured;  if  the  owner  of  the  property  shall  pay 
the  tax  so  levied  on  such  security,  it  shall  constitute  a  payment 
thereon,  and  to  the  extent  of  such  payment  a  full  discharge 
thereof;  provided,  that  if  any  such  security  or  indebtedness 
shall  be  paid  by  any  such  debtor  or  debtors,  after  assessment 
and  before  the  tax  levy,  the  amount  of  such  levy  may  likewise 
be  retained  by  such  debtor  or  debtors,  and  shall  be  computed 
according  to  the  tax  levy  for  the  preceding  year. 

ASSESSMENT  OF  MORTGAGES.— A  mortgage  as  such  is  not 
liable  to  be  assessed,  but  the  assessment  should  be  made  of  the 
debt  which  the  mortgage  was  given  to  secure.  (People  v.  East- 
man, 25  Cal.  601.) 

The  provisions  of  this  section  apply  to  mortgages  executed 
prior  to  the  adoption  of  the  constitution.  (McCoppin  v.  Mc- 
Cartney, 60  Cal.  367.) 

This  section  has  exclusive  reference  to  mortgages,  deeds  of 
trust,  contracts,  or  other  obligations  affecting  realty.  (Bank  of 
Willows  v.  County  of  Glenn,  155  Cal.  352,  101  Pac.  13.) 

When  no  tax  is  assessed  against  the  interest  of  the  mortgagee, 
but  the  whole  tax  is  assessed  against  the  property  and  paid  by 
the  owner,  it  cannot  be  deducted  from  the  mortgage  debt. 
(John  Brickell  Co.  v.  Sutro,  11  Cal.  App.  460,  105  Pac.  948.) 

Where  a  mortgage  executed  prior  to  the  new  constitution  made 
no  provision  as  to  who  sliould  pay  the  taxes,  the  mortgagee  is 
made  primarily  liable  for  them  by  this  section.  (Hay  v.  Hill. 
65  Cal.  383,  4  Pac.  378.) 

An  assessment  levied  by  an  irrigation  district  may  be  levied 
upon  all  lands,  without  deducting  therefrom  any  mortgages 
thereon.     (Tregea  v.  Owens,  94  Cal.  317,  29  Pac.  643.) 


4671  CONSTITUTION  OF  1879.      Art.  XIII,  §  4 

This  section  is  to  be  construed  as  having  reference  only  to 
taxation  in  case  of  liens  upon  land,  and  does  not  apply  to  per- 
sonal property.  (Bank  of  Woodland  v.  Pierce,  144  Cal.  434,  77 
Pac.  1012.) 

Solvent  creditors  may  be  taxed  by  a  city  to  the  owner  domi- 
ciled therein,  though  secured  by  a  lien  upon  wheat  situated  and 
taxed  elsewhere.  (Bank  of  Woodland  v.  Pierce,  144  Cal.  434, 
77  Pac.  1012.) 

Whether  the  loan  secured  by  the  stocks  and  bonds  is  or  is  not 
an  interest  in  the  "property  affected  thereby"  for  the  purpose 
of  taxation  within  the  meaning  of  this  section,  and  conceding 
that  the  stocks  and  bonds  may  be  exempt  from  taxation,  the 
debt  secured  thereby  for  money  loaned  is  not  exempt,  but  may 
be  taxed  to  the  lender.  (Savings  etc.  Soc.  v.  San  Francisco,  131 
Cal.  356,  63  Pac.  6G5.) 

A  mortgage  is  not  "real  estate,"  except  for  the  purpose  of  tax- 
ation. The  mortgagor  is  still  the  owner  of  the  land,  and  it  is 
subject  to  liens  for  taxes  on  personal  property  owned  by  the 
mortgagor.  (California  etc.  Co.  v.  Wcis,  118  Cal.  489,  50  Pac. 
697.) 

An  assessment  of  a  "mortgage  upon  the  following  described 
property,  to  wit"  (describing  the  mortgaged  premises),  is  an 
assessment  of  the  land  and  not  merely  the  mortgage.  (Doland 
V.  Mooney,  72  Cal.  34,  13  Pac.  71.) 

Bonds  of  a  railroad  company  secured  by  mortgages  of  its 
property  within  the  state  are  not  assessable  to  the  holder  of  the 
bonds.  (Germania  etc.  Co.  v.  San  Francisco,  128  Cal.  589,  61 
Pac.  178;  Estate  of  Fair,  128  Cal.  607,  61  Pac.  184.) 

Receipts  for  taxes  on  mortgaged  lands  found  in  the  posses- 
sion of  the  deceased  mortgagee  raise  a  presumption  that  the 
taxes  were  paid  by  him,  though  they  are  in  the  name  of  the 
mortgagor.     (Lloyd  v.  Davis,  123  Cal.  348,  55  Pac.  1003.) 

The  last  clause  of  this  section  does  not  give  the  mortgagor  an 
exclusive  remedy,  but,  if  he  fails  to  retain  the  money,  he  may 
recover  it  from  the  mortgagee.  (San  Gabriel  Co.  v.  Witmer  Co., 
96  Cal.  023,  29  Pac.  500,  31  Pac.  588,  12  L.  R.  A.  465.) 

Where  the  mortgagor  pays  the  interest  on  the  mortgage  he 
cannot  recover  it  back  on  the  ground  that  the  mortgage  pro- 
vides that  the  mortgagor  shall  pay  the  interest  on  the  mortgage. 
(Matthews  v.  Ormerd,  140  Cal.  578,  74  Pac.  136.) 


Art.  XIII,  §  5      CONSTITUTION  OF  1879.  468 

A  first  mortgagee,  having  foreclosed  his  mortgage  against  a 
second  mortgagee,  cannot  maintain  an  action  against  the  latter 
to  recover  money  paid  by  him  to  redeem  the  property  from 
taxes  assessed  u]ion  the  second  mortgage.  (Canadian  etc.  Co. 
V.  Boas,  136  Cal.  419,  69  Pac.  18.) 

The  purchaser  under  a  first  mortgage  is  not  a  party  to  the 
secmrity  of  the  second  mortgage  within  the  meaning  of  this 
section,  and  cannot  recover  a  tax  paid  by  him  on  the  second 
mortgage.  (Henry  v.  Garden  City  Bank  of  San  Jose,  145  Cal. 
54,  78  Pac.  228.) 

The  property  of  railroad  and  other  quasi  public  corporations  is 
subject  to  taxation,  without  deduction  of  any  mortgage  or  other 
like  lien  thereon.  (Central  Pac.  E.  R.  Co.  v.  Board  of  Equaliza- 
tion, 60  Cal.  35.) 

The  provision  of  this  section  taxing  property  of  quasi  public 
corporations,  without  deduction  of  liens  thereon,  is  not  in  con- 
flict with  the  provision  of  the  United  States  constitution  that  no 
state  shall  "deny  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws,"  since  that  provision  does  not  apply  to 
artificial  persons.  (Central  Pac.  E.  E.  Co.  v.  Board  of  Equaliza- 
tion, 60  Cal.  35.) 

Contract  of  borrower  to  pay  tax  on  loan  void. 

Sec.  5.  This  section  was  repealed  by  amendment 
adopted  November  6,  1906.  The  section  repealed  read 
as  follows: 

Sec.  5.  Every  contract  hereafter  made,  by  which  a  debtor 
is  obligated  to  pay  any  tax  or  assessment  on  money  loaned,  or 
on  any  mortgage,  deed  of  trust,  or  other  lien,  shall,  as  to  any 
interest  specified  therein,  and  as  to  such  tax  or  assessment,  be 
null  and  void. 

PAYMENT  OF  TAXES  ON  MORTGAGES. — This  section, 
only  applies  to  contracts  made  after  its  adoption.  (Beckman  v. 
Skaggs,  59  Cal.  541.) 

A  provision  in  a  mortgage  that  the  mortgagee  "may  pay  all 
taxes,  etc.,  upon  the  property,  and  the  same  shall  be  repaid  with 


469  CONSTITUTION  OP  1879.      Art.  XIII,  §  5 

interest  tliereon  at  the  rate  of  one  per  cent  per  month,"  does  not 
violate  this  section.  (Bank  of  Ukiah  v.  Eeed,  131  Cal.  597,  63 
Pac.  921.) 

A  contemporaneous  agreeirent  betvreen  the  mortgagor  and 
mortgagee  that  if  the  mortgagor  Ehould  present  proper  official 
receipts  showing  the  payment  of  the  mortgage  tax,  he  should 
receive  credit  of  two  and  one-half  per  cent  upon  the  mortgage 
note,  is  not  in  violation  of  this  section,  as  it  is  not  enforceable 
against  the  mortgagor,  but  simply  permissive.  (Hewitt  v.  Dean, 
91  Cal.  5,  27  Pac.  423.) 

But  where  a  mortgage  provides  for  interest  of  one  per  cent 
per  month,  but  the  mortgagee,  by  a  separate  instrument  agrees 
that  he  will  only  exact  interest  amounting  to  eight  per  cent 
per  annum  and  agrees  to  refund  all  interest  paid  over  and  above 
this  amount  after  he  has  paid  out  of  said  one  per  cent  per  month 
the  mortgage  tax,  the  two  instruments  must  be  construed  to- 
gether, and,  so  construed,  they  constitute  an  agreement  for  eight 
per  cent  per  annum  interest,  with  the  mortgagors  paying  the 
tax,  and  under  this  section  such  a  contract  is  void.  (Matthews 
V.  Ormerd,  134  Cal.  84,  C6  Pac.  67.) 

A  provision  in  a  mortgage  that,  in  case  of  foreclosure,  the 
mortgagee  may  include  all  payments  made  by  him  for  the  taxes 
on  the  mortgage,  is  void,  and  renders  void  the  mortgage  as  to 
the  payment  of  interest;  but  if  the  mortgagor  pays  the  interest 
he  cannot  recover  it  back.  (Harralson  v.  Barrett,  99  Cal.  607, 
34  Pac.  342;  Garms  v.  Jensen,  103  Cal.  374,  37  Pac.  337.) 

Evidence  of  a  parol  agreement  between  the  parties  to  the 
mortgage,  whereby  the  mortgagor  undertook  to  pay  the  taxes 
which  might  be  assessed  and  levied  upon  the  mortgage,  is  in- 
admissible. (Daw  V.  Niles,  104  Cal.  106,  37  Pac.  876;  Harral- 
son V.  Tomich,  107  Cal.  627,  40  Pac.  1032;  California  State  Bank 
V.  Webber,  110  Cal.  538,  42  Pac.  106G.) 

Where  a  conventional  rate  of  interest  is  agreed  upon,  a  verbal 
agreement  that  if  the  mortgagor  should  pay  the  taxes  on  the 
mortgage,  a  reduction  should  be  allowed  upon  the  agreed  inter- 
est, is  not  in  violation  of  this  pro^■ision.  (California  State  Bank 
v.  Webber,  110  Cal.  538,  42  Pac.  lOGG.) 

A  contemporaneous  agreement  by  the  mortgagor  to  pay  the 
tax  on  the  mortgage  is  void.  (Burbridge  v.  Lemmert,  99  Cal. 
<93,  32  Pac.  310.) 


Art.  XIII,  §§  6-8    CONSTITUTION  OP  1879.  470 

The  provision  of  tliis  section  for  a  forfeiture  of  interest  has 
no  application  to  a  contract  by  a  purchaser  to  pay  taxes  on  the 
land;  nor  does  it  refer  to  a  possible  equitable  lien  of  the  pur- 
chaser for  purchase  money  paid,  which  could  arise,  if  at  all,  only 
when  the  vendor  is  in  default.  (Vance  Redwood  L.  Co.  v. 
Durphy,  8  Cal.  App.  664,  97  Pac.  702.) 

Power  of  taxation  cannot  be  surrendered. 

Sec.  6.  The  power  of  taxation  shall  never  be  surren- 
dered or  suspended  by  any  {?rant  or  contract  to  which 
the  state  shall  be  a  party. 

Payment  of  taxes  by  installments. 

Sec.  7.  The  legislature  shall  have  the  power  to  pro- 
vide by  law  for  the  payment  of  all  taxes  on  real  prop- 
erty by  installments. 

Annual  statement  of  property  to  be  given. 

Sec.  8.  The  legislature  shall  by  law  require  each  tax- 
payer in  this  state  to  make  and  deliver  to  the  county 
assessor,  annually,  a  statement,  under  oath,  setting  forth 
specifically  all  the  real  and  personal  property  owned  by 
such  taxpayer,  or  in  his  possession,  or  under  his  control, 
at  twelve  o'clock  meridian,  on  the  first  Monday  of  March. 

ASSESSMENT. — A  tax  must  rest  upon  an  assessment  made  in 
the  mode  prescribed  by  law,  by  an  assessor  elected  by  the  quali- 
fied electors  of  the  district,  county,  or  town  in  which  the  prop- 
erty is  taxed.     (People  v.  Hastings,  29  Cal.  449.) 

An  assessment  made  by  an  assessor  of  the  city  and  county  of 
Sacramento  is  not  sufficient  basis  for  the  levy  of  a  tax  in  the 
city  of  Sacramento  for  city  purposes.  (People  v.  Hastings,  29 
Cai.  449.) 


471  CONSTITUTION  OP  1879.      Art.  XIII,  §  9 

The  sheriff,  as  such,  cannot  perform  the  duties  of  tax  col 
lector.     (Lathrop  v.  Brittain,  30  Cal.  6S0.) 

The  assessment  must  be  made  by  the  assessor,  and,  if  not  so 
made,  the  legislature  cannot  supply  the  defect  by  a  curative 
act;  but,  if  the  assessment  is  good  in  substance,  any  error  in 
mode,  form,  etc.,  may  be  remedied  by  the  legislature.  '  (People 
V.  MeCreery,  34  Cal.  432.) 

Although  the  legislature  cannot  by  law  transfer  the  duties  of 
tax  collector  from  a  person  elected  as  such  to  one  not  so  elected, 
it  may  provide  for  the  election  of  a  person  as  tax  collector  who 
may  enter  upon  the  discharge  of  his  duties  before  the  expira- 
tion of  the  term  of  a  tax  collector  elected  under  the  law  as  it 
previously  stood.     (Mills  v.  Sargent,  36  Cal.  379.) 

The  provision  of  section  3633  of  the  Political  Code,  providing 
for  an  arbitrary  assessment,  is  not  in  conflict  with  this  section. 
(Orena  v.  Sherman,  61  Cal.  101.) 

This  section  only  has  reference  to  prospective  assessments, 
and  does  not  supersede  a  provision  of  a  city  charter.  (Stockton 
V.  Insurance  Co.,  73  Cal.  621,  15  Pac.  314.) 

This  section  has  no  application  to  the  assessment  of  property 
in  incorporated  cities  for  local  purposes,  (Escondido  v.  Escon- 
dido  L.  etc.  Co.,  8  Cal.  App.  435,  97  Pac.  197.) 

State  board  of  equalization. 

Sec.  9.  A  state  board  of  equalization,  consisting  of 
one  member  from  each  congressional  district  in  this 
state,  as  the  same  existed  in  eighteen  hundred  and  sev- 
enty-nine, shall  be  elected  by  the  qualified  electors  of 
their  respective  districts,  at  the  general  election  to  be 
held  in  the  year  one  thousand  eight  hundred  and  eighty- 
six,  and  at  each  gubernatorial  election  thereafter,  whose 
term  of  office  shall  be  for  four  years,  whose  duty  it  shall 
be  to  equalize  the  valuation  of  the  taxable  property  in 
the  several  counties  of  the  state  for  the  purposes  of  tax- 
ation.    The  controller  of  state  shall  be  ex  officio  a  mem- 


Art.  XIII,  §  9      CONSTITUTION  OF  1879.  472 

ber  of  the  board.  The  boards  of  supervisors  of  the  sev- 
eral counties  of  the  state  shall  constitute  boards  of 
equalization  for  their  respective  counties,  whose  duty 
it  shall  -be  to  equalize  the  valuation  of  the  taxable  prop- 
erty in  the  county  for  the  purpose  of  taxation ;  provided, 
such  state  and  county  boards  of  equalization  are  hereby 
authorized  and  empowered,  under  such  rules  of  notice 
as  the  county  boards  may  prescribe  as  to  the  county  as- 
sessments, and  under  such  rules  of  notice  as  the  state 
board  may  prescribe  as  to  the  action  of  the  state  board, 
to  increase  or  lower  the  entire  assessment-roll,  or  any 
assessment  contained  therein,  so  as  to  equalize  the  as- 
sessment of  the  property  contained  in  said  assessment- 
roll  and  make  the  assessment  conform  to  the  true  value 
in  money  of  the  property  contained  in  said  roll;  pro- 
vided, that  no  board  of  equalization  shall  raise  any 
mortgage,  deed  of  trust,  contract,  or  other  obligation 
by  which  a  debt  is  secured,  money  or  solvent  credits, 
above  its  face  value.  The  present  state  board  of  equali- 
zation shall  continue  in  office  until  their  successors,  as 
herein  provided  for,  shall  be  elected  and  shall  qualify. 
The  legislature  shall  have  power  to  redistrict  the  state 
into  four  districts,  as  nearly  equal  in  population  as 
practicable,  and  to  provide  for  the  election  of  members 
of  said  board  of  equalization.  (Ratification  declared 
February  12,  1885.) 


473  CONSTITUTION  OF  1879.      Art.  XIII,  §  9 

[ORIGINAL  SECTION.] 

Sec.  9.  A  state  board  of  equalization,  consisting  of  one  mem- 
ber from  each  congressional  district  in  this  state,  shall  be  elected 
by  the  qualified  electors  of  their  respective  districts  at  the  gen- 
eral election  to  be  held  in  the  year  eighteen  hundred  and 
seventy-nine,  whose  term  of  office,  after  those  first  elected,  shall 
be  four  years,  whose  duty  it  shall  be  to  equalize  the  valuation 
of  the  taxable  property  of  the  several  counties  in  the  state  for 
the  purposes  of  taxation.  The  controller  of  state  shall  be 
ex  officio  a  member  of  the  board.  The  boards  of  supervisors 
of  the  several  counties  of  the  state  shall  constitute  boards  of 
equalization  for  their  respective  counties,  whose  duty  it  shall 
be  to  equalize  the  valuation  of  the  taxable  property  in  the 
county  for  the  purpose  of  taxation;  provided,  such  state  and 
county  boards  of  equalization  are  hereby  authorized  and  em- 
powered, under  such  rules  of  notice  as  the  county  board  may 
prescribe  as  to  the  county  assessments,  and  under  such  rules  of 
notice  as  the  state  board  may  prescribe,  as  to  the  action  of  the 
state  board,  to  increase  or  lower  the  entire  assessment-roll,  or 
any  assessment  contained  therein,  so  as  to  equalize  the  assess- 
ment of  the  property  contained  in  said  assessment-roll,  and  make 
the  assessment  conform  to  the  true  value  in  money  of  the  prop- 
erty contained  in  said  roll. 

[An  amendment  to  this  section  was  voted  upon  November  6, 
1894,  but,  although  it  appears  in  some  publications  as  having 
been  ratified,  it  was  defeated  by  a  vote  of  88,605  noes  to  86,777 
ayes.] 

BOARD  OF  EQUALIZATION.— It  is  within  the  constitutional 
power  of  tlie  legislature  to  create  a  state  board  of  equalization. 
(Savings  etc.  Soc.  v.  Austin,  46  Cal.  415.) 

Section  1666  of  the  Political  Code  is  unconstitutional,  in  so 
far  as  it  delegates  to  the  state  board  of  equalization  the  right 
to  fix  the  rate  of  taxation  "after  allowing  for  delinquency  in 
the  collection  of  taxes,"  because  it  is  a  delegation  of  legislative 


Art.  XIII,  §  9      CONSTITUTION  OF  1879.  474 

power.  (Houghton  v.  Avistin,  47  Cal.  646.  Savings  etc.  Soc.  v. 
Austin,  46  Cal.  415,  overruled  on  this  point.  See,  also,  Grimm  v. 
O'Connell,  54  Cal.  522;  Wills  v.  Austin,  53  Cal.  152;  Harper  v. 
Rovre,  53  Cal.  233.) 

The  state  board  of  equalization  has  no  power  to  make  a  re- 
assessment and  reapportionment  of  taxes  upon  a  railroad  for 
previous  years,  if  the  taxes  for  such  years  were  originally  validly 
assessed  and  apportioned,  (Colusa  County  v.  Glenn  County,  124 
Cal.  498,  57  Pac.  477.) 

Mandamus  will  not  lie  to  compel  the  assessor  to  assess  prop- 
erty in  excess  of  its  value,  upon  the  ground  that  it  was  greatly 
undervalued  in  the  previous  fiscal  year.  (Clunie  v.  Siebe,  112 
Cal.  593,  44  Pac.  1064.) 

As  to  the  notice  to  be  given  by  the  board  to  the  taxpayer,  see 
Allison  Eanch  etc.  Co.  v.  Nevada  Co.,  104  Cal.  161,  37  Pac.  875. 

Section  38G1  of  the  Political  Code,  requiring  the  assessor,  at 
the  request  of  the  board  of  equalization,  to  list  and  assess  prop- 
erty which  he  has  failed  to  assess,  is  not  in  conflict  with  this 
section,  since  it  simply  confers  an  additional  power  upon  the 
board.  (Farmers'  etc.  Bank  v.  Board  of  Equalization,  97  Cal. 
318,  32  Pac.  312.) 

An  act  authorizing  an  assessment  of  taxes,  after  the  time 
within  which  the  board  of  supervisors  can  meet  for  the  purpose 
of  equalization,  is  violative  of  this  section.  (People  v.  Pitts- 
burg R.  R.  Co.,  67  Cal.  625,  8  Pac.  381.) 

The  state  board  of  equalization  has  power  to  increase  or  lower 
the  assessment-roll  of  a  county  so  as  to  affect  taxes  for  county 
purposes.     (Baldwin  v.  Ellis,  68  Cal.  495,  9  Pac.  652.) 

The  action  of  the  state  board  of  equalization  in  raising  the 
assessment-roll  of  a  county  under  this  section  operates  upon 
mortgage  assessments.  (Schroeder  v.  Grady,  66  Cal.  212,  5  Pac. 
81.) 

The  state  board  of  equalization  has  no  power  to  increase  the 
assessment  of  money,  where  the  money  is  already  assessed  at 
its  face  value.     (People  v.  Dunn,  59  Cal.  328.) 

A  refusal  of  a  state  board  of  equalization  to  reduce  an  assess- 
ment does  not  preclude  the  board  from  afterward  raising  the 
same  assessment.  (Central  Pac.  R.  R.  Co.  v.  Placer  Co.,  46  Cal. 
667.) 


475  CONSTITUTION  OF  1879.      Art.  XIII,  §  9 

The  board  of  equalization  has  no  power  to  strike  out  from 
an  assessment,  made  by  an  assessor,  property  assessed  by  him. 
(People  V.  Supervisors,  50  Cal.  282.) 

The  board  of  equalization  has  no  power  to  cancel  an  assess- 
ment for  taxes  placed  by  the  assessor  upon  the  assessment-roll. 
(People  V.  Supervisors,  44  Cal.  613.) 

The  board  of  equalization,  in  paaiiug  on  the  question  whether 
an  assessment  is  too  high  or  too  low,  acts  in  a  judicial  capacity. 
(People  V.  Gokltree,  44  Cal.  323.) 

A  board  of  equalization  acts  judicially  in  raising  or  lowering 
an  assessment,  and  has  no  arbitrary  power  of  assessment  or  re- 
assessment. It  cannot  act  without  a  hearing,  upon  notice  given 
to  the  person  assessed,  nor  change  £n  assessment  made  by  the 
assessor  without  evidence  adduced  authorizing  such  change. 
(Oakland  v.  Southern  Pac.  R.  R.  Co.,  131  Cal.  226,  63  Pac.  371.) 

In  order  to  give  the  board  of  equalization  jurisdiction  to  in- 
crease the  valuation  of  property  assessed,  the  filing  of  a  com- 
plaint is  necessary.     (People  v.  Gokltree,  44  Cal.  323.) 

The  state  board  of  equalization  cannot  delegate  to  its  clerk 
authority  to  issue  orders  prolonging  the  time  of  the  sessions  of 
the  county  boards  of  equalization.  (Buswell  v.  Supervisors,  116 
Cal.  351,  48  Pac.  226.) 

The  board  of  equalization  may  appoint  a  committee  to  take 
testimonv  as  to  the  valuation  of  property.  (People  v.  McCreery, 
34  Cal.  h2.) 

The  presumption  of  law  is  that  a  board  of  equalization  per- 
form their  duty  and  correct  any  inequality  in  the  assessment  of 
taxes.      (Guy  v.  Washburn,  23  Cal.  111.) 

The  proviso  to  this  section  is  to  be  read  distributively,  that 
is  to  say,  as  authorizing  the  state  board  to  increase  or  lower 
the  entire  assessment-roll  of  any  county,  and  the  county  boards 
to  increase  or  lower  the  individual  assessments  of  their  respec- 
tive counties.  The  state  board,  therefore,  has  no  power  to  in- 
crease or  lower  individual  assessments;  nor  has  a  county  board 
the  power  to  increase  or  lower  the  entire  assessment-roll. 
(Wells,  Fargo  &  Co.  v.  Board  of  Equalization,  56  Cal.  194;  San 
Francisco  etc.  R.  R.  Co.  v.  State  Board,  60  Cal.  12.) 

This  section  does  not  make  it  necessary  for  a  county  board, 
in  a  return  to  a  writ  of  certiorari,  to  set  out  general  rules  of 
notice  adopted  by  the  board.  (Garretson  v.  Santa  Barbara,  61 
Cal.  54.) 


Art.  XIII,  §  10    CONSTITUTION  OF  1879.  476 

Property,  where  assessed. 

Sec.  10.  All  property,  except  as  otherwise  in  this 
constitution  provided,  shall  be  assessed  in  the  county, 
city,  city  and  county,  town  or  township,  or  district  in 
which  it  is  situated,  in  the  manner  prescribed  by  law. 
(Amendment  adopted  November  8,  1910.  This  amend- 
ment was  adopted  as  a  part  of  the  same  amendment  by 
which  section  14  of  this  article  was  added.     See  note  to 

that  section.) 

[OEIGINAL  SECTION.] 
Sec.  10.  All  property,  except  as  hereinafter  in  this  seeti>jn 
provided,  shall  be  assessed  in  the  county,  city,  city  and  county, 
town,  township,  or  district  in  which  it  is  situated,  in  the  manner 
prescribed  by  law.  The  franchise,  roadway,  roadbed,  rails  and 
rolling  stock  of  all  railroads  operated  in  more  than  one  county 
in  this  state  shall  be  assessed  by  the  state  board  of  equaliza- 
tion, at  their  actual  value,  and  the  same  shall  be  apportioned 
to  the  counties,  cities  and  counti'^s,  cities,  towns,  townships,  and 
districts  in  which  such  railroads  are  located,  in  proportion  to 
the  number  of  miles  of  railway  laid  in  such  counties,  cities  and 
counties,  cities,  towns,  townships,  and  districts. 

SITUS  OF  PROPERTY.— This  section  is  self-executing. 
(San  Francisco  etc.  R.  R.  Co.  v.  State  Board,  60  Cal.  12.) 

It  has  no  relation  to  the  assessment  of  the  property  of  rail- 
road corporations,  operated  in  more  than  one  county.  (Central 
Pac.  R.  R.  Co.  V.  Board  of  Equalization,  60  Cal.  35.) 

Boards  of  supervisors  of  the  several  counties  through  which 
run  railroads  operated  in  more  than  one  county  have  no  juris- 
diction to  raise  or  lower  the  assessment  placed  upon  the  property 
of  such  roads  by  the  board  of  equalization.  (People  v.  Sacra- 
mento County,  59  Cal.  321.) 

This  provision  has  reference  to  the  permanent  situs  of  the 
property,  as  distinguished  from  the  place  of  temporary  sojourn, 
or  transit.     (Rosasco  v.  Tuolumne,  143  Cal.  430,  77  Pac.  148.) 


477  CONSTITUTION  OF  1879.     Art.  XIII,  §  10 

Water  ditches  for  irrigating  purposes  must  be  assessed  the 
&<ime  as  real  estate  in  the  county  in  which  they  are  situated. 
(Kern  Valley  Land  Co.  v.  County  of  Kern,  137  Cal.  511,  70  Pac. 
476.) 

Section  39  of  the  Wright  Irrigation  Act,  providing  that  if  the 
trustees  of  the  district  fail  to  levy  a  tax  to  pay  the  bonds  of  the 
district,  the  board  of  supervisors  shall  do  so,  is  constitutional. 
(Nevada  Nat.  Bank  v.  Supervisors,  5  Cal.  App.  638,  91  Pac. 
122.) 

The  franchise  to  collect  water  rates  is  taxable  in  the  county 
where  exercised.  (San  Joaquin  etc.  Co.  v.  Merced  County,  2 
Cal.  App.  593,  84  Pac.  285.) 

The  franchise  to  be  a  corporation  is  taxable  at  the  principal 
place  of  business  of  the  corporation.  (San  Joaquin  etc.  Co,  v. 
Merced  County,  2  Cal.  App.  593,  84  Pac.  285.) 

The  franchise  to  lay  pipes  and  conduits  or  erect  poles  is  real 
estate,  and  is  inseparably  annexed  to  the  soil,  and  has  a  local 
situation  in  the  place  where  the  right  is  exercised,  and  can  only 
be  assessed  in  the  counties  where  it  is  situated.  (Stockton  Gas 
etc.  Co.  V.  San  Joaquin  County,  148  Cal.  313,  83  Pac.  54,  5  L.  E. 
A.,  N.  S.,  174,  7  Ann.  Cas.  511.) 

Steamers  used  by  a  railroad  company  in  transporting  its 
freight-cars  across  the  bay  of  San  Francisco  are  not  included 
in  the  property  mentioned  in  this  section,  and  should  be  assessed 
by  the  local  assessor,  and  not  by  the  state  board  of  equaliza- 
tion. (San  Francisco  v.  Central  Pac,  E.  E.  Co.,  63  Cal.  467,  49 
Am.  Eep.  98.) 

Vessels  not  having  any  actual  situs  are  properly  assessed  at 
the  domicile  of  the  owner  when  registered.  (California  S.  Co. 
v.  San  Francisco,  150  Cal.  145,  88  Pac.  704.) 

For  the  purpose  of  taxation,  the  situs  of  money  belonging  to 
the  estate  of  a  decedent  is  in  the  county  where  the  decedent  re- 
sided at  the  time  of  his  death,  and  the  situs  is  not  changed  by 
placing  the  money  on  general  deposit  in  a  bank  of  another 
county.     (San  Francisco  v.  Lux,  64  Cal.  481,  2  Pac.  254.) 

Debts  are  taxable  at  the  domicile  of  the  creditor.  (Pacific 
etc.  Soc.  v.  San  Francisco,  133  Cal.  14,  65  Pac.  16.) 

ASSESSMENT  OF  RAILROADS.— This  section  does  not  in 
terms  require  the  assessed  value  of  the  franchise,  roadway,  road- 
bed, rails,  and  rolling  stock,  to  be  separately  apportioned. '  (San 
Francisco  etc.  E.  R.  Co.  v.  State  Board,  60  Cal.  12.) 


Art.  XIII,  §  10    CONSTITUTION  OF  1879.  478 

The  provisions  of  this  section  do  not  apply  to  "street"  rail 
roads,  though  operating  in  more  than  one  county.  (San  Fran- 
cisco etc.  Ry.  Co.  v.  Scott,  142  Cal.  222,  75  Pac.  575;  Hunting- 
ton V.  Curry,  14  Cal.  App.  468,  112  Pac.  583.) 

A  county  has  no  authority  to  collect  taxes  upon  a  railroad 
operated  in  more  than  one  county,  which  are  due  to  a  school  dis- 
trict. (San  Bernardino  v.  Southern  Pac.  R.  R.  Co.,  137  Cal.  659, 
70  Pac.  782.) 

A  law  providing  for  the  assessment  and  collection  of  taxes 
upon  railroads  operating  m  more  than  one  county  is  valid. 
(People  V.  Central  Pac.  R.  R.  Co.,  105  Cal.  576,  38  Pac.  905. 
People  V.  Central  Pac.  R.  R.  Co.,  83  Cal.  393,  23  Pac.  303,  over- 
ruled.) 

In  making  a  reassessment  of  railroad  taxes,  to  take  the  place 
of  an  invalid  assessment  of  a  previous  year,  it  is  the  duty  of 
the  board  to  make  the  apportionment  to  the  counties  as  they 
existed  at  the  time  of  the  invalid  assessment,  and  not  at  the 
time  of  the  reassessment.  (San  Diego  County  v.  Riverside 
County,  125  Cal.  495,  58  Pac.  81.) 

The  power  of  the  board  of  equalization  to  assess  railroad 
property  depends  wholly  upon  the  constitutional  grant  of  powers 
thereto,  and  constitutes  an  express  exception  to  the  general  rule 
which  requires  all  property  to  be  assessed  locally.  It  is  only 
where  the  property  comes  under  the  head  of  "franchise,  road- 
way, roadbed,  rails  and  rolling  stock"  of  a  railroad  operated  in 
more  than  one  county,  that  it  can  be  assessed  by  the  state 
board  of  equalization.  (Atchison  etc.  Ry.  v.  Los  Angeles,  158 
Cal.  437,  111  Pac.  250.) 

The  state  board  can  only  assess  the  franchise,  roadway,  road- 
bed and  rolling  stock  of  railroads.  All  improvements  situated 
on  or  off  the  right  of  way  are  to  be  assessed  by  the  local  au- 
thorities. (San  Francisco"  &  S.  J.  Ry.  Co.  v.  Stockton,  149  Cal. 
83,  84  Pac.   771.) 

Railroad  property  consisting  of  blocks  of  land  adjoining  the 
'right  of  way,  acquired  and  used  for  station  purposes,  for  a  pas- 
senger depot,  for  a  freight-house,  with  spur  tracks  and  sidings, 
for  a  roundhouse,  for  machine-shops,  for  a  storehouse,  with  ma- 
terials for  construction  purposes,  with  tracks  for  switching  and 
repairing  purposes,  for  a  water-tank  and  for  a  cattle-yard,  and 
also  a  right  of  way  and  roadbed  never  used  or  operated  for 
railroad  purposes,  are  to  be  assessed  exclup-ively  by  the   city 


479  CONSTITUTION  OF  1879.     Art.  XIII,  §§  10y2-12 

assessor.     (San  Francisco  &  S.  J.  V.  Ey.  Co.  v.  Stockton,  149  Cal. 
83,  84  Pac.  771.) 

Personal  property  to  extent  of  $100  exempt. 

Sec.  101/2-  The  personal  property  of  every  house- 
holder to  the  amount  of  one  hundred  dollars,  the  arti- 
cles to  be  selected  by  each  householder,  shall  be  exempt 
from  taxation.  (New  section  added  by  amendment  ap- 
proved November  8,  1904.) 

Income  taxes. 

Sec.  11.  Income  taxes  may  be  assessed  to  and  col- 
lected from  persons,  corporations,  joint-stock  associa- 
tions, or  companies  resident  or  doing  business  in  this 
state,  or  any  one  or  more  of  them,  in  such  cases  and 
amounts,  and. in  such  manner,  as  shall  be  prescribed  by 
law. 

Poll  tax. 

Sec.  12.  The  legislature  shall  provide  for  the  levy 
and  collection  of  an  annual  poll  tax  of  not  less  than  two 
dollars  on  every  male  inhabitant  of  this  state,  over 
tvt'enty-one  and  under  sixty  years  of  age,  except  paupers, 
idiots,  insane  persons,  and  Indians  not  taxed.  Said  tax 
shall  be  paid  into  the  state  school  fund. 

SCHOOL  TAXES. — A  statute  authorizing  county  assessors  to 
retain,  as  their  compensation  in  collecting,  fifteen  per  cent  of 
all  poll  taxes  collected  by  them,  is  not  in  conflict  with  this 
section.  (San  Luis  Obispo  County  v.  Felts,  104  Cal.  60,  37  Pac. 
780.) 

The  poll  tax  levied  under  this  section  is  a  state  tax.  (Ala- 
meda County  V.  Dalton,  148  Cal.  246,  82  Pac.  1050.) 


Art.  XIII,  §§  1234-14    CONSTITUTION  OF  1879.  480 

Young  trees  and  vines  exempt  from  taxation. 

Sec.  12%..  Fruit  and  nut-bearing  trees  under  the 
age  of  four  years  from  the  time  of  planting  in  orchard 
form,  and  grapevines  under  the  age  of  three  years  from 
the  time  of  planting  in  vinej^ard  form,  shall  be  exempt 
from  taxation,  and  nothing  in  this  article  shall  be  con- 
strued as  subjecting  such  trees  and  grapevines  to  taxa- 
tion.    (Amendment  adopted  November  6,  1894.) 

Laws  to  be  passed  by  legislature. 

Sec.  13.  The  legislature  shall  pass  all  laws  necessary 
to  carry  out  the  provisions  of  this  article. 

Legislation. — Under  this  provision  the  legislature  may  define 
the  words  "improvements"  and  "property."  (Miller  v.  County 
of  Kern,  137  Cal.  516,  70  Pac.  549.) 

Taxes  for  state  purposes. 

Sec.  14.  Taxes  levied,  assessed  and  collected  as  here- 
inafter provided  upon  railroads,  including  street  rail- 
ways, whether  operated  in  one  or  more  counties ;  sleep- 
ing-car, dining-car,  drawing-room  car  and  palace-car 
companies,  refrigerator,  oil,  stock,  fruit,  and  other  car- 
loaning  and  other  car  companies  operating  upon  rail- 
roads in  this  state;  companies  doing  express  business 
on  any  railroad,  steamboat,  vessel  or  stage  line  in  this 
state;  telegraph  companies;  telephone  companies;  com- 
panies engaged  in  the  transmission  or  sale  of  gas  or 
electricity;  insurance  companies;  banks,  banking  asso- 
ciations, savings  and  loan  societies,  and  trust  companies; 


481  CONSTITUTION  OF  1879.     Art.  XIII,  §  14 

and  taxes  upon  all  franchises  of  every  kind  and  nature, 
shall  be  entirely  and  exclusively  for  state  purposes,  and 
shall  be  levied,  assessed  and  collected  in  the  manner 
hereinafter  provided.  The  word  "companies"  as  used 
in  this  section  shall  include  persons,  partnerships,  joint- 
stock  associations,  companies,  and  corporations. 

♦Taxes  on  railroads,  express  companies,  telegraph  and 
telephone  companies,  gas  and  electric  companies. 

(a)  All  railroad  companies,  including  street  rail- 
ways, whether  operated  in  one  or  more  counties;  all 
sleeping-car,  dining-car,  drawing-room  car,  and  palace- 
car  companies,  all  refrigerator,  oil,  stock,  fruit  and  other 
car-loaning  and  other  car  companies,  operating  upon 
the  railroads  in  this  state ;  all  companies  doing  express 
business  on  any  railroad,  steamboat,  vessel  or  stage  line, 
in  this  state;  all  telegraph  and  telephone  companies; 
and  all  companies  engaged  in  the  transmission  or  sale 
of  gas  or  electricity  shall  annually  pay  to  the  state  a 
tax  upon  their  franchises,  roadways,  roadbeds,  rails, 
rolling  stock,  poles,  wires,  pipes,  canals,  conduits,  rights 
of  way,  and  other  property,  or  any  part  thereof,  used 
exclusively  in  the  operation  of  their  business  in  this 
state,  computed  as  follows:  Said  tax  shall  be  equal  to 
the  percentages  hereinafter  fixed  upon  the  gross  receipts 


*The  headings  found  in  this  section  are  not  part  of  tbe  enact- 
ment but  are  inserted  for  couveuieuce  of  reference. 
Constitutioa — 31 


Art.  XIII,  §  14    CONSTITUTION  OF  1879.  482 

from  operation  of  such  companies  and  each  thereof 
within  this  state.  When  such  companies  are  operating 
partly  within  and  partly  without  this  state,  the  gross 
receipts  within  this  state  shall  be  deemed  to  be  all  re- 
ceipts on  business  beginning  and  ending  within  this 
state,  and  a  proportion,  based  upon  the  proportion  of 
the  mileage  within  this  state  to  the  entire  mileage  over 
which  such  business  is  done,  of  receipts  on  all  business 
passing  through,  into,  or  out  of  this  state. 

The  percentages  above  mentioned  shall  be  as  follows: 
On  all  railroad  companies,  including  street  railways, 
fourjer  cent;  on  all  sleeping-car,  dining-car,  drawing- 
room  car,  palace-car  companies,  refrigerator,  oil,  stock, 
fruit  and  other  car-loaning  and  other  car  companies, 
three  per  cent;  on  all  companies  doing  express  business 
on  any  railroad,  steamboat,  vessel  or  stage  line,  two  per 
cent;  on  all  telegraph  and  telephone  companies,  thTee_ 
and  one-half  per  cent;  on  all  companies  engaged  in  the 
transmission  or  sale  of  gas  or  electricity,  four  per  cent. 
Such  taxes  shall  be  in  lieu  of  all  other  taxes  and  licenses, 
state,  county  and  municipal,  upon  the  property  above 
enumerated  of  such  companies  except  as  otherwise  in 
this  section  provided ;  provided,  that  nothing  herein  shall 
be  construed  to  release  any  such  company  from  the  pay- 
ment of  any  amount  agreed  to  be  paid  or  required  by 
law  to  be  paid  for  any  special  privilege  or  franchise 
granted  by  any  of  the  municipal  authorities  of  this 
state. 


483  CONSTITUTION  OF  1879.    Art.  XIII,  §  14 

Taxes  on  insurance  companies. 

(b)  Every  insurance  company  or  association  doing 
business  in  this  state  shall  annually  pay  to  the  state 
a  tax  of  one  and  one-half  per  cent  upon  the  amount 
of  the  gross  premiums  received  upon  its  business  done 
in  this  state,  less  return  premiums  and  reinsurance  in 
companies  or  associations  authorized  to  do  business  in 
this  state;  provided,  that  there  shall  be  deducted  from 
said  one  and  one-half  per  cent  upon  the  gross  premiums 
the  amount  of  any  county  and  municipal  taxes  paid 
by  such  companies  on  real  estate  owned  by  them  in  this 
state.  This  tax  shall  be  in  lieu  of  all  other  taxes  and  li- 
censes, state,  county  and  municipal,  upon  the  property 
of  such  companies,  except  county  and  municipal  taxes 
on  real  estate,  and  except  as  otherwise  in  this  section 
provided ;  provided,  that  when  by  the  laws  of  any  other 
state  or  country,  any  taxes,  fines,  penalties,  licenses,  fees, 
deposits  of  money,  or  of  securities,  or  other  obligations 
or  prohibitions  are  imposed  on  insurance  companies  of 
this  state,  doing  business  in  sueh  other  state  or  country, 
or  upon  their  agents  therein,  in  excess  of  such  taxes, 
fines,  penalties,  licenses,  fees,  deposits  of  money,  or  of 
securities,  or  other  obligations  or  prohibitions,  imposed 
upon  insurance  companies  of  such  other  state  or  country, 
so  long  as  such  laws  continue  in  force,  the  same  obliga- 
tions and  prohibitions  of  whatsoever  kind  may  be  im- 
posed by  the  legislature  upon  insurance  companies  of 
such  other  state  or  country  doing  business  in  this  state. 


Art.  XIII,  §  14    CONSTITUTION  OF  1879.  484 

Taxes  on  bank  stock. 

(c)  The  shares  of  capital  stock  of  all  banlcs,  organ- 
ized under  the  laws  of  this  state,  or  of  the  United  States, 
or  of  any  other  state  and  located  in  this  state,  shall  be 
assessed  and  taxed  to  the  owners  or  holders  thereof  by 
the  state  board  of  equalization,  in  the  manner  to  be  pre- 
scribed by  law,  in  the  city  or  town  where  the  bank  is 
located  and  not  elsewhere.  There  shall  be  levied  and 
assessed  upon  such  shares  of  capital  stock  an  annual 
tax,  payable  to  the  state,  of  one  per  centum  upon  the 
value  thereof.  The  value  of  each  share  of  stock  in  each 
bank,  except  such  as  are  in  liciuidation,  shall  be  taken 
to  be  the  amount  paid  in  thereon,  together  with  its  pro 
rata  of  the  accumulated  surplus  and  undivided  profits. 
The  value  of  each  share  of  stock  in  each  bank  which  is 
in  lic|uidation  shall  be  taken  to  be  its  pro  rata  of  the 
actual  assets  of  such  bank.  This  tax  shall  be  in  lieu 
of  all  other  taxes  and  licenses,  state,  county  and  munic- 
ipal, upon  such  shares  of  stock  and  upon  the  property 
of  such  banks,  except  county  and  municipal  taxes  on 
real  estate  and  except  as  otherwise  in  this  section  pro- 
vided. In  determining  the  value  of  the  capital  stock  of 
any  bank  there  shall  be  deducted  from  the  value,  as 
defined  above,  the  value,  as  assessed  for  county  taxes, 
of  any  real  estate,  other  than  mortgage  interests  therein, 
owmed  by  such  bank  and  taxed  for  county  purposes. 
The  banks  shall  be  liable  to  the  state  for  this  tax  and 
the  same  shall  be  paid  to  the  state  by  them  on  behalf  of 


485  CONSTITUTION  OF  1879.     Art.  XIII,  §  14 

the  stockholders  in  the  manner  and  at  the  time  pre- 
scribed by  law,  and  they  shall  have  a  lien  upon  thy 
shares  of  stock  and  upon  any  dividends  declared  thereon 
to  secure  the  amount  so  paid. 

Taxes  on  unincorporated  banks. 

The  monej'ed  capital,  reserve,  surplus,  undivided 
profits  and  all  other  property  belonging  to  unincor- 
porated banks  or  bankers  of  this  state,  or  held  by  any 
bank  located  in  this  state  which  has  no  shares  of  capital 
stock,  or  employed  in  this  state  by  any  branches,  agen- 
cies, or  other  representatives  of  any  banks  doing  business 
outside  of  the  state  of  California,  shall  be  likewise  as- 
sessed and  taxed  to  such  banks  or  bankers  by  the  said 
board  of  equalization,  in  the  manner  to  be  provided  by 
law,  and  taxed  at  the  same  rate  that  is  levied  upon  the 
shares  of  capital  stock  of  incorporated  banks,  as  pro- 
vided in  the  first  paragraph  of  this  subdivision.  The 
value  of  said  property  shall  be  determined  by  taking 
the  entire  property  invested  in  such  business,  together 
with  all  the  reserve,  surplus,  and  undivided  pi'ofits,  at 
their  full  cash  value,  and  deducting  therefrom  the  value 
as  assessed  for  county  taxes  of  any  real  estate,  other 
than  mortgage  interests  therein,  owned  by  such  bank 
and  taxed  for  county  purposes.  Such  taxes  shall  be  in 
lieu  of  all  other  taxes  and  licenses,  state,  county  and 
municipal,  upon  the  property  of  the  banks  and  bankers 
mentioned  in  this  paragraph,  except  county  and  munic- 


Art.  XIII,  §  14    CONSTITUTION  OP  1879.  486 

ipal  taxes  on  real  estate  and  except  as  otherwise  in 
this  section  provided.  It  is  the  intention  of  this  para- 
graph that  all  moneyed  capital  and  property  of  the 
banks  and  bankers  mentioned  in  this  paragraph  shall 
be  assessed  and  taxed  at  the  same  rate  as  an  incor- 
porated bank,  provided  for  in  the  first  paragraph  of  this 
subdivision.  In  determining  the  value  of  the  moneyed 
capital  and  property  of  the  banks  and  bankers  men- 
tioned in  this  subdivision,  the  said  state  board  of  equal- 
ization shall  include  and  assess  to  such  banks  all  prop- 
erty and  everything  of  value  owned  or  held  by  them, 
which  go  to  make  up  the  value  of  the  capital  stock  of 
such  banks  and  bankers,  if  the  same  were  incorporated 
and  had  shares  of  capital  stock. 

The  w'ord  "banks"  as  used  in  this  subdivision  shall 
include  banking  associations,  savings  and  loan  societies 
and  trust  companies,  but  shall  not  include  building  and 
loan  associations. 

Taxes  on  franchises. 

(d)  All  franchises,  other  than  those  expressly  pro- 
vided for  in  this  section,  shall  be  assessed  at  their  ac- 
tual cash  value,  in  the  manner  to  be  provided  by  law, 
and  shall  be  taxed  at  the  rate  of  one  per  centum  each 
year,  and  the  taxes  collected  thereon  shall  be  exclusively 
for  the  benefit  of  the  state. 


487  CONSTITUTION  OF  1879.    Art.  XIII,  §  14 

School  and  university  funds. 

(e)  Out  of  the  revenues  from  the  taxes  provided  for 
in  this  section,  together  with  all  other  state  revenues, 
there  shall  be  first  set  apart  the  moneys  to  be  applied 
by  the  state  to  the  support  of  the  public  school  system 
and  the  state  university.  In  the  event  that  the  above- 
named  revenues  are  at  any  time  deemed  insufficient 
to  meet  the  annual  expenditures  of  the  state,  including 
the  above-named  expenditures  for  educational  purposes, 
there  may  be  levied,  in  the  manner  to  be  provided  by 
law,  a  tax,  for  state  purposes,  on  all  the  property  in  the 
state,  including  the  classes  of  property  enumerated  in 
this  section,  sufficient  to  meet  the  deficiency.  All  prop- 
erty enumerated  in  subdivisions  a,  b,  and  d  of  this  sec- 
tion shall  be  subject  to  taxation,  in  the  manner  provided 
by  law  to  pa}^  the  principal  and  interest  of  any  bonded 
indebtedness  created  and  outstanding  by  any  city,  city 
and  county,  county,  town,  township  or  district,  before 
the  adoption  of  this  section.  The  taxes  so  paid  for  prin- 
cipal and  interest  on  such  bonded  indebtedness  shall  be 
deducted  from  the  total  amount  paid  in  taxes  for  state 
purposes. 

Provisions  self-executing,  etc. 

(f)  All  the  provisions  of  this  section  shall  be  self- 
executing,  and  the  legislature  shall  pass  all  laws  neces- 
sary to  carry  this  section  into  effect,  and  shall  pro- 
vide  for  a    valuation   and  assessment   of   the   property 


Art.  XIII,  §  14    CONSTITUTION  OF  1879.  488 

enumerated  in  this  section,  and  shall  prescribe  the 
duties  of  the  state  board  of  equalization  and  any 
other  officers  in  connection  with  the  administration 
thereof,  l^he^rates  of  taxation  fixed  by  this  section 
shall  remain  in  force  until  changed  by  the  legislature, 
two-thirds  of  all  the  members  elected^o  each  of  _the  two 
houses  voting  in  favor  thereof.  The  taxes  herein  pro- 
vided for  shall  become  a  lien  on  the  first  Monday  in 
IMarch  of  each  year  after  the  adoption  of  this  section  and 
diall  become  due  and  payable  on  the  first  Monday  in 
July  thereafter.  The  gross  receipts  and  gross  premiums 
herein  mentioned  shall  be  computed  for  the  year  ending 
the  thirty-first  day  of  December  prior  to  the  levy  of  such 
taxes  and  the  value  of  any  property  mentioned  herein 
shall  be  fixed  as  of  the  first  Monday  in  March.  Nothing 
herein  contained  shall  affect  any  tax  levied  or  assessed 
prior  to  the  adoption  of  this  section ;  and  all  laws  in  re- 
lation to  such  taxes  in  force  at  the  time  of  the  adoption 
of  this  section  shall  remain  in  force  until  changed  by  the 
legislature.  Until  the  year  1918  the  state  shall  reim- 
burse any  and  all  counties  which  sustain  loss  of  revenue 
by  the  withdrawal  of  railroad  property  from  county  tax- 
ation for  the  net  loss  in  county  revenue  occasioned  by  the 
withdrawal  of  railroad  property  from  county  taxation. 
The  legislature  shall  provide  for  reimbursement  from  the 
general  funds  of  any  county  to  districts  therein  where 
loss  is  occasioned  in  such  districts  by  the  withdrawal 


489  CONSTITUTION  OF  1879.     Art.  XIII,  §  14 

from  local  taxation  of  property  taxed  for  state  purposes 
only. 

Suits  to  recover  or  enjoin  tax. 

(g)  No  injunction  shall  ever  issue  in  any  suit,  action 
or  proceeding  in  any  court  against  this  state  or  against 
any  officer  thereof  to  prevent  or  enjoin  the  collection  of 
any  tax  levied  under  the  provisions  of  this  section ;  but 
after  payment  action  may  be  maintained  to  recover  any 
tax  illegally  collected  in  such  manner  and  at  such  time 
as  may  now  or  hereafter  be  provided  by  law.  (New  sec- 
tion added  by  amendment  adopted  November  8,  1910.) 

TAXATION  FOR  STATE  PURPOSES.— This  section  was  the 
result  of  a  movement  inaugurated  in  1905  to  separate  the  system 
of  state  and  local  taxation.  To  that  end  an  act  was  passed  on 
the  twentieth  day  of  March,  1905,  authorizing  the  appointment 
of  a  commission  on  revenue  and  taxation.  (Stats.  1905,  p.  390.) 
Pursuant  to  that  act  the  commission  was  appointed,  consisting 
of  Governor  George  C.  Pardee,  Professor  Carl  C.  Plehn,  expert 
on  taxation  and  public  finance,  Senators  J.  B.  Curtin  and  M.  L. 
Ward,  and  Assemblymen  H.  S.  G.  McCartney  and  Edward  F. 
Treadwell.  That  commission  made  an  elaborate  report  to  the 
governor  in  1906  and  recommended  a  constitutional  amendment 
for  the  purpose  of  carrying  out  its  recommendations,  which 
was  adopted  as  Senate  Constitutional  Amendment  No.  1,  on 
March  9,  1907  (Stats.  1907,  p.  1353).  This  amendment  was 
voted  upon  at  the  election  held  in  November,  1908,  and  failed 
of  adoption,  and  thereupon  the  commission  recommended  a  new 
amendment  correcting  the  defects  in  the  prior  amendment,  which 
was  again  adopted  as  Senate  Constitutional  Amendment  No.  1, 
on  March  19,  1909  (Stats.  1909,  p.  1332).  This  amendment  con- 
sisted of  this  new  section  14,  and  the  amendment  to  section 
10  of  this  article,  and  the  repeal  of  section  10  of  article  11. 
This  amendment  was  submitted  to  a  vote  of  the  people  and 
adopted  at  the  general  election  in  November,  1910. 


Art.  XIII,  §  14    CONSTITUTION  OP  1879.  490 

The  general  purpose  and  object  of  the  amendment  is  fully- 
discussed  in  the  two  reports  of  the  commission  above  referred 
to.  In  the  first  report  the  question  of  the  constitutionality  of 
a  gross  earnings  tax  is  discussed  in  some  detail,  and  as  that 
discussion  is  applicable  to  the  validity  of  this  section,  it  is  here 
inserted: 

"Is  a  gross  earnings  tax  constitutional? 

"The  opinion  is  often  expressed  in  tax  commission  reports 
and  elsewhere  that  a  tax  on  the  gross  earnings  of  railroads, 
in  so  far  as  those  earnings  are  derived  from  interstate  com- 
merce, is  of  doubtful  validity  under  provisions  of  the  Federal 
Constitution.  This  view  is  very  forcibly  expressed  by  the  On- 
tario Commission  on  Railway  Taxation,  1905,  which,  however, 
brought  in  a  very  strong  report  in  favor  of  the  gross  earnings 
tax  on  broad  general  grounds.  Their  recommendation  applied, 
of  course,  to  Canada,  where  the  constitutional  difficulties  re- 
ferred to  could  not  apply.  The  Ontario  Commission,  after  say- 
ing that  'The  earning  power  is  the  only  reliable  and  satisfactory 
basis  of  taxation,'  alleged: 

"  'In  the  United  States,  however,  owing  to  the  wording  and 
interpretation  of  the  Constitution,  it  is  held  by  the  courts  that 
taxation  by  any  State  of  the  earnings  of  a  railroad  derived 
from  interstate  traffic  is  illegal.  Consequently,  even  where  the 
earnings  of  a  railroad  are  made  the  basis  of  taxation,  the  tax 
laws  are  careful  to  state  that  the  tax  is  a  license  tax  or  a 
franchise  tax,  merely  measured  by  gross  earnings;  and  it  is 
often  further  guarded  by  some  such  qualifying  clause  as,  "de- 
rived entirely  from  traffic  within  the  State."  In  several  states 
where  the  gross  earnings  tax  is  accepted  by  both  the  people 
and  the  railways,  it  is  thought  that  the  law  is  not  really  con- 
stitutional, but,  as  neither  party  cares  to  bring  the  matter 
to  a  test,  it  is  permitted  to  stand.  In  Wisconsin,  the  gross 
earnings  tax,  lately  abolished,  was  declared  by  several  judges 
to  be  unconstitutional,  but  they  refused  to  give  judgments  ad- 
verse to  the  state  on  account  of  the  confusion  which  would  be 
introduced   into   the   State   revenue. 

"  'When  such  states  as  Michigan  and  Wisconsin,  which  had 
previously  taxed  the  railroads  on  the  gross  earnings  basis, 
reached  the  conviction  that  the  railroads  were  not  paying  as 
much  as  they  might  be  made  to  pay,  we  find  that,  instead  of 


491  CONSTITUTION  OF  1879.     Art.  XIII,  §  14 

simply  raising  tbe  rate  of  the  existing  tax  from,  say  four, 
to  say  five  or  six  per  cent,  they  found  it  expedient  to  change 
the  basis  of  taxation.  This  was  obviously  done  because  they 
knew  that  the  raising  of  the  rate  would  meet  with  the  opposi- 
tion of  the  railroads  and  would  probabl}^  result  in  the  tax  law 
being  declared  unconstitutionjil,  thereby  paralyzing  a  large 
section  of  the  revenue  of  the  State  until  a  new  method  of  taxa- 
tion should  be  adopted.  Yet,  as  already  indicated,  and  as  an 
examination  of  its  operation  will  show,  the  so-called  ad  valorem 
system  of  these  and  other  states  is  really  a  roundabout  method 
of  getting  at  earnings  once  more  on  a  higher  rate  of  taxation.' 
(Eeport  of  Ontario  Commission  on  Railway  Taxation,  1905,  pp. 
16-17.) 

"This  view,  as  forcibly  expressed  by  the  Ontario  Commission, 
has  been  sedulously  spread  by  certain  railroad  attorneys  and 
is  somewhat  extensively  held  in  the  United  States,  but  it  does 
not  accord  with  the  decisions  of  the  Supreme  Court.  The  fol- 
lowing analj'sis  of  the  long  series  of  interesting  decisions  upon 
this  point  will  show  at  once  where  the  erroneous  opinion  arose 
and  what  the  Supreme  Court  now  holds: 

"The  constitutionality  of  a  tax  on  the  gross  receipts  of  corpora- 
tions engaged  in  interstate  commerce. 

"In  writing  the  following  synopsis  of  the  decisions  of  the 
Supreme  Court  as  to  the  power  of  the  states  to  tax  interstate 
carriers  we  have  worked  directly  from  the  United  States  Re- 
ports. Much  assistance  was,  however,  found  in  the  admirable 
treatise  by  Frederick  N.  Judson,  of  the  St.  Louis  Bar,  on  The 
Power  of  Taxation,  State  and  Federal,  in  the  United  States: 
St.  Louis,  190.S,  especially  Chapters  III,  VII  and  VIII. 

"Mr.  Treadwell  went  over  the  cases  first  and  formulated  the 
conclusions  reached. 

"Of  the  several  provisions  of  the  Federal  Constitution  in- 
tended jointly  to  safeguard  'the  freest  interchange  of  com- 
modities among  the  people  of  the  different  states'  (Justice 
Miller  in  Cook  v.  Pennsylvania,  97  U.  S.  574),  the  one  chiefly 
relied  upon  in  connection  with  the  taxation  of  carriers  encragcd 
in  interstate  commerce  is  paragraph  3,  of  Section  8,  of  Article 
I,  which  confers  upon  Congress  the  power:  'To  regulate  com- 
merce with  foreign  nations,  and  among  the  several  states,  and 
with  the  Indian  tribes.' 


Art.  XIII,  §  14    CONSTITUTION  OF  1879,  492 

"The  dictum  of  Chief  Justice  Marshall  in  MeCulloeh  v.  Mary- 
land, 'that  the  power  to  tax  involves  the  power  to  destroy,  etc.,' 
was  delivered  solely  with  reference  to  the  taxation  of  the 
'instruments  employed  by  the  Government  in  the  execution  of 
its  powers,'  and  no  attempts  to  apply  it  as  a  prohibition  of  State 
taxation  of  interstate  carriers,  even  when  they  are  incor- 
porated by  the  United  States,  have  been  successful.  (Thompson 
V.  Pacific  Eailroad,  &  Wall.  579;  Eailroad  Co.  v.  Peniston,  IS 
Wall.  5.) 

"The  ditBculty  of  drawing  a  sharp  line  between  the  Federal 
powers  and  the  State  powers  in  the  matter  of  the  taxation  and 
regulation  of  those  great  agencies  of  interstate  commerce,  like 
the  railroads  and  the  telegraph,  which  extend  from  one  end  of 
the  country  to  the  other,  has  troubled  the  courts  since  1872. 
It  is  only  recently  that  the  problem  has  been  definitely  solved. 

"While  the  greater  part  of  each  of  the  two  fields,  in  which  each 
of  the  two  great  divisions  of  our  Government  may  respectively 
exercise  its  powers,  is  clear  enough,  yet  the  boundary  of  one 
seems  to  merge  almost  imperceptibly  into  that  of  the  other  at 
places.  This  has  resulted  in  much  litigation,  and  the  decisions 
of  the  Supreme  Court  on  some  of  the  most  vital  points  have 
occasionally  seemed  contradictory.  In  not  a  few  instances  the 
Court  has  apparently  reversed  itself. 

"However,  the  following  points  seem  now  to  have  been  con- 
clusively settled: 

"A.  As  to  the  taxation  of  interstate  carriers  on  an  ad  valorem 
basis: 

"1.  A  State  may  tax  the  property,  within  its  bounds,  of  rail- 
road companies  and  other  persons  or  corporations  engaged  in 
interstate  commerce.  (Railroad  Co.  v.  Peniston,  18  Wall.  5, 
and  later  cases  based  thereon.) 

"2.  It  may  tax  both  the  tangible  and  the  intangible  property 
of  the  carriers,  provided  only,  that  it  may  not  tax  a^-Fecleral 
franchise.  (Central  Pacific  R.  R.  Co.  v.  California,  162  U.  S. 
91.) 

"3.  A  State  may  value  that  property  by  the  'unit  rule,'  i,  e., 
make  a  valuation  of  the  entire  property  of  the  'system'  of  a 
given  corporation  engaged  in  interstate  business,  and  tax  that 
proportion  of  the  entire  property  which  the  mileage  in  the 
'itate  bears  to  the  total  mileage  operated.  Or,  what  is  the  same 
thing,   may   make   the   apportionment   on   the   basis   of  business 


493  CONSTITUTION  OF  1879.     Art.  XIII,  §  14 

done.  (State  Eailroad  Tax  Cases,  92  U.  S.  575;  Western  Union 
Telegraph  Co.  v.  Taggert,  163  U.  S.  1;  Adams  Express  Co.  v. 
Ohio,  165  U.  S.  194.) 

"4.  It  may  arrive  at  a  vakiation  by  the  following  methods: 

"(a)  By  adding  the  market,  or  fair  cash,  value  of  the  shares 
of  capital  stock  and  the  market,  or  par,  value  of  the  various 
kinds  of  funded  indebtedness. 

"Justice  Miller,  in  rendering  an  oft-quoted  decision  on  this 
point,  said:  'It  is  therefore  obvious  that,  when  you  have  ascer- 
tained the  current  cash  value  of  the  whole  funded  debt,  and  the 
current  cash  value  of  the  entire  number  of  shares,  you  have,  by 
the  action  of  those  who  above  all  others  can  best  estimate  it, 
ascertained  the  true  value  of  the  road,  all  its  property,  its  capi- 
tal stock,  and  its  franchises;  for  these  ar@  all  represented  by 
I  he  value  of  its  bonded  debt  and  of  the  shares  of  its  capital 
itock.' 

"He  added  that  this  would  be  perhaps  the  fairest  basis  of 
taxation  for  the  State  at  large,  if  all  railroads  were  solvent  and 
1  aid  the  interest  promptly  on  their  funded  debt;  but  that  this 
was  not  the  case.  The  system  adopted  by  the  statute  of  Illinois 
and  the  rule  of  the  board  preserved  the  principle  of  taxing  all 
the  tangible  property  at  its  value,  and  then  taxing  the  capital 
stock  and  franchise  at  their  value,  if  there  was  any,  after 
deducting  the  value  of  the  tangible  property.  (State  Eailroad 
Tax  Cases,  92  U.  S.  575.) 

"(b)  By  considering  one  or  more  of  several  elements,  or  evi- 
dences of  value,  as:  the  cost  of  construction  or  equipment,  the 
market  value  of  the  outstanding  securities,  the  gross  earnings 
and  the  net  earnings,  and  all  other  matters  appertaining  thereto. 
(Indiana  Eailroad  Cases,  154  U.  S.  421  and  439.) 

"5.  The  court  has  recognized  the  fact  that  the  value  of  prop- 
erty of  this  class  depends  largely  on  the  earnings.  In  some  of 
the  decisions  already  referred  to  this  is  made  clear.  Thus  in  the 
Indiana  Railroad  Tax  Cases  (p.  445)  it  was  said: 

"  'The  rule  of  property  taxation  is  that  the  value  of  the  prop- 
erty is  the  basis  of  taxation.  It  docs  not  mean  a  tax  upon  the 
earnings  which  the  property  makes,  nor  for  the  privilege  of 
using  the  property,  but  rests  solely  upon  the  value.  But  the 
value  of  property  results  from  the  use  to  which  it  is  put  and 
varies  with  the  profitableness  of  that  use,  present  and  prospec- 
tive, actual  and  anticipated.     There  is  no  pecuniary  value  out- 


Art.  XIII,  §  14    CONSTITUTION  OF  1879.  494 

side  of  that  wliicli  results  from  such  use.  The  amount  and 
profitable  character  of  such  use  determines  the  value,  and  if 
property  is  taxed  at  its  actual  cash  value,  it  is  taxed  upon 
something  which  is  created  by  the  uses  to  which  it  is  put.  In 
the  nature  of  things  it  is  practically  impossible — at  least  in  re- 
spect to  railroad  property — to  divide  its  value,  and  determine 
how  much  is  caused  by  one  use  to  which  it  is  put  and  how  much 
by  another.  Take  the  case  before  us;  it  is  impossible  to  dis- 
integrate the  value  of  that  portion  of  the  road  within  Indiana 
and  determine  how  much  of  that  value  springs  from  its  use  in 
doing  interstate  business,  and  how  much  from  its  use  in  doing 
business  wholly  within  the  State.  An  attempt  to  do  so  would 
be  entering  upon  a  mere  field  of  uncertainty  and  speculation. 
And  because  of  this  fact  it  is  something  which  an  assessing 
board  is  not  required  to  attempt.' 

"B.     As  to  the  taxation  of  carriers  or  of  interstate  business  by 
methods  other  than  the  property  or  ad  valorem  tax: 

"1.  A  State  may  not  levy  a  license  tax  as  a  prerequisite  in 
carrying  on  interstate  business. 

"In  Osborne  v.  Mobile,  16  Wallace,  479,  decided  in  1872,  the 
Supreme  Court  decided  that  this  could  be  done.  But  fifteen 
years  later  that  case  was  overruled  in  Leloup  v.  Mobile,  127  U. 
S.  640.     The  trenchant  part  of  this  decision  reads: 

"  'A  great  number  and  variety  of  cases  involving  the  com- 
mercial power  of  Congress  have  been  brought  to  the  attention 
of  this  court  during  the  past  fifteen  years  which  have  frequently 
made  it  necessary  to  re-examine  the  whole  subject  with  care; 
and  the  result  has  sometimes  been  that  in  order  to  give  full  and 
fair  effect  to  the  different  clauses  of  the  Constitution,  the  court 
has  felt  constrained  to  refer  to  the  fundamental  principles  stated 
and  illustrated  with  so  much  clearness  and  force  by  ChiefJus- 
tice  Marshall  and  other  members  of  the  court  in  former  times, 
and  to  modify  in  some  degree  certain  dicta  and  decisions  which 
have  occasionally  been  made  in  the  intervening  period.  This  is 
always  done,  however,  with  great  caution,  and  an  anxious  desire 
to  place  the  final  conclusion  reached  upon  the  fairest  and  most 
just  constructions  of  the  Constitution  in  all  its  parts.' 

"The  conclusion  was,  therefore  (1.  c,  page  648),  'that  no  State 
has  the  right  to  lay  a  tax  on  interstate  commerce  in  any  form, 
whether  by  way  of  duties  laid  on  the  transportation  of  the 
subjects  of  that  commerce,  or  on  the  receipts  derived  from  that 


495  eoNSTiTUTioN  OF  1879.    Art.  XIlI,  §  14 

transportation,  or  on  the  occupation  or  business  of  carrying  it 
on,  and  the  reason  is  that  such  taxation  is  a  burden  on  that 
commerce  and  amounts  to  a  regulation  of  it,  which  belongs 
solely  to  Congress.'  (See,  also,  Webster  v.  Bell,  68  Fed.  183; 
McCall  V.  California,  136  U.  S.  104;  Norfolk  and  Webster  R. 
Co.  V.  Penn,  136  U.  S.  114;  Crutcher  v.  Kentucky,  141  U.  S.  47.) 

"2.  A  State  may  levy  a  license  tax  on  local  or  interstate  busi- 
ness performed  by  interstate  carriers,  (Osborne  v.  Florida,  164 
U.  S.  650;  Postal  Telegraph  Cable  Co.  v.  Adams,  155  U.  S.  688.) 

"3.  A  State  may  not  tax  freight,  in  interstate  commerce,  nor 
interstate  telegraph  messages.  (State  Freight  Tax  Case,  15 
Wall.  232;  Telegraph  Co.  v.  Texas,  105  U.  S.  460.) 

"4.  A  State  may  levy  a  tax  in  proportion  to  the  gross  receipts 
from  interstate  commerce  under  certain  conditions  and  in  cer- 
tain forms.     But  may  not  tax  the  receipts  as  such. 

"The  earliest  case  involving  this  point  seems  to  be  one  de- 
cided in  1872,  at  about  the  same  time  that  the  State  Freight  Tax 
case,  above  referred  to,  was  decided.  This  is  known  as  'The 
State  Tax  on  Gross  Receipts,'  15  Wall.  284. 

"The  State  of  Pennsylvania  levied  a  three-fourths  of  one  per 
cent  tax  on  the  gross  earnings  of  every  railroad  incorporated 
under  its  laws,  and  the  tax  was  held  valid,  even  when  it  covered 
the  earnings  of  a  State  railroad  on  coal  carried  out  of  the  State. 

"This  case  was  distinguished  from  the  State  Freight  Tax  case 
on  the  ground  that  not  everything  which  affects  commerce 
amounts  to  a  regulation  of  it  within  the  meaning  of  the  Con- 
stitution. 

"The  court  said,  in  words  that  often  reappear  in  the  later 
decisions  on  the  same  point,  after  showing  that  the  states  have 
authority  to  tax  the  property,  real  and  personal,  of  all  corpora- 
tions whether  engaged  in  interstate  commerce  or  not: 

"  'We  think  also  that  such  tax  may  be  laid  upon  a  valuation, 
or  may  be  an  excise,  and  that  in  exacting  an  excise  tax  from 
their  corporations,  the  states  ar"  not  obliged  to  impose  a  fixed 
sum  upon  the  franchises  or  upon  the  value  of  them,  but  they 
may  demand  a  graduated  contribution,  proportioned  either  to 
the  value  of  the  privileges  granted,  or  to  the  extent  of  tlieir 
exercise,  or  to  the  results  of  such  exercise.  There  certainly  is 
a  line  which  separates  that  power  of  the  Federal  Government 
to  regulate  commerce  among  the  states,  which  is  exclusive,  from 
the  authority  of  the  states  to  tax  a  person's  property,  business, 


Art.  XIII,  §  14    CONSTITUTION  OP  1879.  496 

or  occupation,  within  their  limits.  The  line  is  sometimes  diffi- 
cult to  define  with  distinctnefes.  It  is  so  in  the  present  case; 
but  we  think  it  may  safely  be  laid  down  that  the  gross  receipts 
of  railroad  or  canal  companies,  after  they  have  reached  the 
treasury  of  the  carriers,  though  they  may  have  been  derived  in 
part  from  transportation  of  freight  between  states,  have  become 
subject  to  legitimate  taxation.' 

"In  commenting  on  these  decisions,  Mr.  Judson  says: 

"  'It  seems  to  have  been  conceded  that  a.  State  can  levy  a 
tax  upon  net  earnings,  and  the  court  said  that  it  is  difficult  to 
state  any  well-founded  distinction  between  a  State  tax  upon 
net  earnings  and  one  upon  gross  earnings,  that  net  earnings  are 
a  part  of  the  gross  receipts,  and  that  the  gross  receipts  are  a 
measure  of  approximate  value. 

"'Neither  of  these  cases  has  been  overruled;  but  the  author- 
ity of  the  decision  in  the  case  of  the  State  Tax  on  Gross  Re- 
ceipts was  for  a  time  seriously  impaired  by  decisions  of  the 
court  apparently  inconsistent  with  the  broad  statement  therein 
of  the  right  to  tax  gross  receipts,  on  the  ground  that  they  have 
passed  into  the  treasury  of  the  company  and  lost  their  distinc- 
tive character  as  freight.'  (See  Steamship  Co.  v.  Pennsylvania, 
122  U.  S.  326;  Fargo  v.  Michigan,  121  U.  S.  230.) 

"  'It  will  be  noticed  that  the  mileage  rule  of  apportionment 
of  interstate  properties  was  not  suggested  or  considered  in  the 
case  of  the  State  Tax  on  Gross  Receipts.  The  case  presented 
was  that  of  a  railroad  whose  line  was  entirely  within  the  State, 
but  which  did  an  interstate  business  through  its  connections 
with  other  lines  leading  out  of  the  State.' 

"We  come  now  to  a  series  of  cases  in  which  a  State  tax  on 
gross  receipts  from  interstate  trade  has  been  held  invalid.  The 
first  is  Fargo  v.  Michigan,  121  U.  S.  230.  The  Merchants'  Des- 
patch Transportation  Company,  a  New  York  corporation,  owned 
certain  cars  which  it  leased  to  the  railroad  companies  which 
operated  them.  The  State  of  Michigan  assessed  a  tax  on  the 
gross  receipts  of  that  company  in  the  State  measured  by  the 
unit  rule  and  based  on  receipts  from  the  transportation  of 
freight  from  points  without  to  points  within  the  State  and  from 
points  within  to  points  without,  but  did  not  tax  the  receipts 
from  business  passing  entirely  through  the  State.  This  case  was 
distinguished  from  the  Railway  Gross  Receipts  case  (which  it 
did  not  distinctly  overrule)   on  the  grounds   (1)   that  the  Mer- 


497  CONSTITUTION  OP  1879.     Art.  XIII,  §  14 

chants'  Despatch  was  not  a  Michigan  corporation,  and  (2)  that 
in  the  Pennsylvania  case  the  money  was  in  the  treasury  of  the 
companj'^  in  that  state,  while  in  the  Michigan  ease  the  money 
for  the  freight  was  probably  never  in  that  State  and  hence  not 
property  subject  to  taxation. 

"In  the  next  term  of  the  court  the  theory  that  gross  receipts 
could  not  be  taxed  was  more  fully  developed  in  the  case  of  the 
Philadelphia  Steamship  Co.  v.  Pennsylvania,  122  U.  S.  326.  In 
this  case  Pennsylvania  had  attempted  to  impose  a  tax  on  the 
gross  receipts  of  railroads,  canal,  steamboat,  and  other  trans- 
portation companies.  The  steamship  company  in  question  was 
a  Pennsylvania  corporation  running  steamers  between  Phila- 
delphia and  Savannah  and  from  New  Orleans  to  foreign  ports. 
The  court  held  that  interstate  commerce  carried  on  by  shii)s  at 
sea  is  national  in  character  and  must  be  covered  by  one  general 
rule.     The  court  said: 

"  'If,  then,  the  commerce  carried  on  by  the  plaintiff  in  error 
in  this  case  could  not  be  constitutionally  taxed  by  the  State, 
could  the  fares  and  freights  received  for  transportation  in 
carrying  on  that  commerce  be  constitutionally  taxed?  If  the 
State  cannot  tax  the  transportation,  may  it,  nevertheless,  tax 
the  fares  and  freights  received  therefor?  Where  is  the  differ- 
ence? Looking  at  the  substance  of  things,  and  not  at  mere 
forms,  it  is  very  difficult  to  see  any  difference.  The  one  thing 
seems  to  be  tantamount  to  the  other.  It  would  seem  to  be 
rather  metaphysics  than  plain  logic  for  the  State  officials  to  say 
to  the  company:  "We  will  not  tax  you  for  the  transportation  you 
perform,  but  we  will  tax  you  for  what  you  get  for  performing 
it."  Such  a  position  can  hardly  be  said  to  be  based  on  a  sound 
method  of  reasoning. 

"'No  doubt  a  ship-owner,  like  any  other  citizen,  may  be  per- 
sonally taxed  for  tlie  amount  of  his  property  or  estate,  without 
regard  to  the  source  from  which  it  was  derived,  whether  from 
commerce,  or  banking,  or  any  otlier  employment.  But  that  is 
an  entirely  different  thing  from  laying  a  special  tax  upon  his 
receipts  in  a  particular  employment.  If  such  a  tax  is  laid,  and 
the  receipts  taxed  are  those  derived  from  transporting  goods  and 
passengers  in  the  way  of  interstate  or  foreign  commerce,  no 
matter  when  the  tax  is  exacted,  whether  at  the  time  of  realizing 
the  receipts,  or  at  the  end  of  every  six  months  or  a  year,  it  is 
Constitution — 32 


Art.  XIII,  §  14    CONSTITUTION  OF  1879.  498 

an  exaction  aimed  at  the  commerce  itself,  and  is  a  burden  upon 
it,  and  seriously  aifects  it.  A  review  of  the  question  convinces 
us  that  the  first  ground  on  which  the  decision  in  State  Tax  on 
Eailway  Gross  Receipts  was  placed  is  not  tenable;  that  it  is  not 
supported  by  anything  decided  in  Brown  v.  Maryland;  but  on 
the  contrary,  that  the  reasoning  in  that  case  is  decidedly  against 
it.' 

"On  the  basis  of  these  decisions  the  State  courts  quite  gen- 
erally held  that  gross  receipts  of  carriers  in  interstate  commerce 
could  not  be  taxed. 

"But  there  is  another  line  of  decisions  which  seem  to  modify 
tlje  effect  of  the  line  running  from  Fargo  v.  Michigan  without 
expressly  overruling  them.  These  connect  with  the  cases  sanc- 
tioning the  taxation  of  property.  But  so  far  as  they  affect  the 
question  of  the  actual  measurement  of  a  State  tax  by  the  gross 
receipts,  including  an  equitable  portion  of  the  receipts  from 
interstate  commerce,  they  are  more  recent  than  the  other  line 
and  have  ended  in  such  emphatic  re-assertion  that  they  seem 
absolutely  conclusive. 

"In  1881  Maine  inaugurated  a  tax  on  each  railroad  in  the 
State  entitled  'an  annual  excise  tax,  for  the  privilege  of  exercis- 
ing its  franchises  and  the  franchises  of  its  leased  roads  in  the 
State.'  This  tax  'is  in  place  of  all  taxes  upon  such  railroad,  its 
property  and  stock.'  The  amount  of  this  tax  was  calculated  on 
the  basis  of  the  average  gross  receipts  per  mile  of  road.  It  is 
important  to  note  that  the  tax  was  payable  in  April  and  was 
computed  on  the  basis  of  gross  receipts  for  the  year  ending  June 
30  in  the  preceding  year.  The  following  provisions  covered 
interstate  railroads: 

"  'When  a  railroad  lies  partly  within  and  partly  without  the 
State,  or  is  operated  as  a  part  of  a  line  or  system  extending 
beyond  the  State,  the  tax  shall  be  equal  to  the  same  proportion 
of  the  gross  receipts  in  the  State,  as  herein  provided,  and  its 
amount  shall  be  determined  as  follov/s:  the  gross  transportation 
receipts  of  such  railroad,  line  or  system,  as  the  case  may  be, 
over  its  whole  extent,  within  and  without  the  State,  shall  be 
divided  by  the  total  number  of  miles  operated  to  obtain  the 
average  gross  receipts  per  mile,  and  the  gross  receipts  in  the 
State  shall  be  taken  to  be  the  average  gross  receipts  per  mile, 
multiplied  by  the  number  of  miles  operated  within  the  State.' 


499  CONSTITUTION  OF  1879.     Art.  Xill,  §  M 

"The  Grand  Trunk  Eailroad  Company,  a  Canadian  corporation, 
operated  a  road  in  Maine,  which  it  leased,  and  became  subject' 
to  this  tax.  The  railroad  opposed  the  tax  on  the  ground  that 
the  case  of  the  State  tax  on  gross  receipts  had  been  overruled 
in  Fargo  v.  Michigan,  and  this  contention  was  sustained  by  the 
United  States  court.  On  appeal  to  the  Supreme  Court  the  de- 
cision of  the  lower  court  was  reversed  and  the  tax  was  held  to 
be  valid.     The  court  said: 

"  'The  tax,  for  the  collection  of  which  this  action  is  brought, 
is  an  excise  tax  upon  the  defendant  corporation  for  the  privi- 
lege of  exercising  its  franchises  within  the  State  of  Maine.  It 
is  so  declared  in  the  statute  which  imposes  it;  and  that  a  tax 
of  this  character  is  within  the  power  of  the  State  to  levy  there 
can  be  no  question.  The  designation  does  not  always  indicate 
merely  an  inland  imposition  or  duty  on  the  consumption  of  com- 
modities, but  often  denotes  an  impost  for  a  license  to  pursue 
certain  callings,  or  to  deal  in  special  commodities,  or  to  exercise 
particular  franchises.  It  is  used  more  frequently,  in  -this  coun- 
try, in  the  latter  sense  than  in  any  other.  The  privilege  of 
exercising  the  franchises  of  a  corporation  within  a  State  is 
generally  one  of  value,  and  often  of  great  value,  and  the  sub- 
ject of  earnest  contention.  It  is  natural,  therefore,  that  the 
corporation  should  be  made  to  bear  some  proportion  of  the 
burdens  of  government.  As  the  granting  of  the  privilege  rests 
entirely  in  the  discretion  of  the  State,  whether  the  corporation 
be  of  domestic  or  foreign  origin,  it  may  be  conferred  upon  such 
conditions,  pecuniary  or  otherwise,  as  the  State  in  its  judgment 
may  deem  most  conducive  to  its  interests  or  policy.  It  may  re- 
quire the  payment  into  its  treasury,  each  year,  of  a  specific  sum, 
or  may  apportion  the  amount  exacted  according  to  the  value  of 
the  business  permitted,  as  disclosed  by  its  gains  or  receipts  of 
the  present  or  past  years.  The  character  of  the  tax,  or  its 
validity  is  not  determined  by  the  mode  adopted  in  fixing  its 
amount  for  any  specific  period  or  the  times  of  its  payment.  The 
whole  field  of  iiKjuiry  into  the  extent  of  revenue  from  sources 
at  the  command  of  the  corporation  is  open  to  the  consideration 
of  the  State  in  determining  what  may  be  justly  exacted  for  the 
privilege.  The  rule  of  apportioning  the  charge  to  the  receipts 
of  the  business  would  seem  to  be  eminently  reasonable,  and 
likelv  to  produce  the  most  satisfactory  results,  both  to  the  State 
and  the  corporation  taxed. 


Art.  XIII,  §  14    CONSTITUTION  OF  1879.  500 

"'The  court  below  held  that  the  imposition  of  the  taxes  was 
'a  regulation  of  commerce,  interstate  and  foreign,  and  therefore 
in  conflict  with  the  exclusive  power  of  Congress  in  that  respect; 
and  on  that  ground  alone  it  ordered  judgment  for  the  defend- 
ant. This  ruling  was  founded  upon  the  assumption  that  a  refer- 
ence by  the  statute  to  the  transportation  receipts  and  to  a 
certain  percentage  of  the  same  in  determining  the  amount  of 
the  excise  tax,  was  in  effect  the  imposition  of  the  tax  upon 
such  receipts,  and  therefore  an  interference  with  interstate  and 
foreign  commerce.  But  a  resort  to  those  receipts  was  simiply  to 
ascertain  the  value  of  the  business  done  by  the  corporation, 
and  thus  obtain  a  guide  to  a  reasonable  conclusion  as  to  the 
amount  of  the  excise  tax  which  should  be  levied;  and  we  are 
unable  to  perceive  in  that  resort  any  interference  with  trans- 
portation, domestic  or  foreign,  over  the  road  of  the  railroad 
company,  or  any  regulation  of  commerce  which  consists  in  such 
transportation.  If  the  amount  ascertained  were  specifically  im- 
posed as  the  tax,  no  objection  to  its  validity  would  be  pretended. 
And  if  the  inquiry  of  the  State  as  to  the  value  of  the  privilege 
were  limited  to  receipts  of  certain  past  years  instead  of  the  year 
in  which  the  tax  is  collected,  it  is  conceded  that  the  validity  of 
the  tax  would  not  be  affected;  and  if  not,  we  do  not  see  how 
a  reference  to  the  results  of  any  other  year  could  affect  its  char- 
acter. There  is  no  levy  by  the  statute  on  the  receipts  them- 
selves, either  in  form  or  fact;  they  constitute,  as  said  above, 
simply  the  means  of  ascertaining  the  value  of  the  privilege  con- 
ferred. 

"  'The  case  of  Philadelphia  and  Southern  Steamship  Co.  v. 
Pennsylvania,  122  U.  S.  326,  in  no  way  conflicts  with  this  de- 
cision. That  was  the  case  of  a  tax,  in  terms,  upon  the  gross 
receipts  of  a  steamship  company,  incorporated  under  the  laws 
of  the  State,  derived  from  the  transportation  of  persons  and 
property  between  different  states  and  to  and  from  foreign  coun- 
tries. Such  tax  was  held,  without  any  dissent,  to  be  a  regula- 
tion of  interstate  and  foreign  commerce,  and,  therefore,  invalid. 
"We  do  not  question  the  correctness  of  that  decision,  nor  do  the 
views  we  hold  in  this  case  in  any  way  qualify  or  impair  it.' 
(Maine  v.  Grand  Trunk  Ey.  Co.,  142  U.  S.  217,  228.) 

"From  the  above  decision  four  justices  dissented,  which  was 
regarded  as  slightly  impairing  its  authority.  But  in  Erie  R.  R. 
Co.  V.  Pennsylvania,  158  U.  S.  431,  the  same  principie  was  re- 


501  CONSTITUTION  OF  1879.     Art.  XIII,  §  14 

affirmed.  (See,  also,  Lehigh  Valley  R.  R.  Co.  v.  Pennsylvania, 
145  U.  S.  192;  Western  Union  Telegraph  Co.  v,  Taggart,  163 
U.  S.  1.) 

"The  most  recent  case  on  the  subject  is  Wisconsin  &  Michigan 
Ey.  Co.  V.  Powers,  191  U.  S.  379. 

"The  right  of  the  State  to  levy  a  tax  on  the  gross  earnings 
of  an  interstate  carrier  was  involved  in  this  case,  together  with 
one  other  point  not  connected  with  our  question. 

"On  the  point  in  which  we  are  interested  the  court  said: 

"  'We  need  say  but  a  word  in  answer  to  the  suggestion  that 
the  tax  is  an  unconstitutional  interference  with  interstate  com- 
merce. In  form  the  tax  is  a  tax  on  "the  pro})erty  and  business 
of  such  railroad  corporation  operated  within  the  State,"  com- 
puted upon  certain  percentages  of  gross  income.  The  prima  facie 
measure  of  the  plaintiff's  gross  income  is  substantially  that 
which  was  approved  in  Maine  v.  Grand  Trunk  Railway  Co.,  142 
U.  S.  217,  228.  See,  also.  Western  Union  Telegraph  Co.  v.  Tag- 
gart, 163  U.  S.  1.     Decree  affirmed.' 

"This  was  a  unanimous  decision,  except  that  Mr  Justice  Wliite, 
not  having  heard  the  argument,  took  no  part  in  the  decision. 
He  concurred,  however,  in  the  decision  in  Erie  Railroad  v. 
Pennsylvania,  a  case  involving  the  same  points. 

"It  appears,  then,  that  a  State  tax  on  the  property,  or  on  the 
franchise,  measured  by  the  gross  receipts  is  valid  and  is  not  a 
'regulation  of  interstate  commerce,'  in  the  sense  in  which  the 
right  to  regulate  commerce  is  prohibited  to  the  states  by  the 
Constitution." 

NATIONAL  BANKS.— In  regard  to  the  taxation  of  national 
banks  and  the  extent  of  the  power  of  the  state  in  that  regard, 
1he  rei)ort  contained  the  following: 

Points  decided  by  the  courts  in  interpretation  of  section  5219 
of  the   Revised  Statutes,   and  bearing  on  the   amendment 
proposed  by  the  Conunission. 
In  general. 

The  power  of  the  state  to  tax  national  banks  rests  solely 
upon  the  permission  of  Congress.  Congress  has  provided  the 
method  in  which  this  power  may  be  exercised,  and  no  other 
method   is  legal. 

U.  S.  Revised  Statutes,  sec.  5219:  "Notliing  herein  sliall  pre- 
vent all   the  shares   in  any   association   from   being  included   in 


Art.  XIII,  §  14    CONSTITUTION  OF  1879.  502 

tlie  valuation  of  the  personal  property  of  the  owner  or  holder 
of  such  shares,  in  assessing  taxes  imposed  by  the  authority  of 
the  state  in  which  the  association  is  located;  but  the  legis- 
lature of  each  state  may  determine  and  direct  the  manner  and 
place  of  taxing  all  shares  of  national  banking  associations 
located  within  the  state,  subject  only  to  the  two  restrictions, 
that  the  taxation  shall  not  be  at  a  greater  rate  than  is  assessed 
upon  other  moneyed  capital  in  the  hands  of  individual  citizens 
of  such  state,  and  that  the  shares  of  any  national  banking 
association  owned  by  nonresidents  of  any  state  shall  be  taxed 
in  the  city  or  town  where  the  bank  is  located,  and  not  else- 
where. Nothing  herein  shall  be  construed  to  exempt  the  real 
property  of  associations  from  either  state,  county,  or  municipal 
taxes  to  the  sams  extent,  according  to  its  value  as  other  real 
property  is  taxed." 

This  provision  has  been  interpreted,  (1)  By  definition  of  the 
terms;  (2)  By  prohibition  of  certain  powers  claimed  by  the 
states;   (3)  By  granting  certain  powers  to  the  states. 

A.  Defining  the  terms.  1,  "Other  moneyed  capital"  positively 
defined : 

{a)  "Other  moneyed  capital"  is  other  taxable  moneyed  capital. 
(Van  Allen  v.  Commissioners,  4  Wall.  244;  Lionberger  v.  Rouse, 
9  Wall.  468.) 

{h)  If  none  other  is  taxable  it  may  be  bank  shares  only.  In 
First  Nat.  Bank  of  Wilmington  v.  Herbert,  44  Fed.  158,  it  was 
held  that  "where  the  only  subjects  of  taxation  were  real  estate, 
livestock  and  bank  shares,  it  was  no  ground  for  complaint"  that 
"moneyed  capital"  other  than  bank  shares  was  not  taxed. 

(c)  The  leading  authority  on  "other  moneyed  capital"  is  Mer- 
cantile National  Bank  v.  New  York,  121  U.  S.  139  (affirming 
28  Fed.  176). 

In  this  ease,  confirmed  by  subsequent  eases,  the  meaning  of 
"other  moneyed  capital"  is  restricted  to  capital  competing  with 
national  banks.  (Nat.  Bank  of  Garnett  v.  Ayers,  160  U.  S.  660; 
Talbott  V.  Silver  Bow  County,  139  U.  S.  438;  First  National  Bank 
V.  Chapman,  173  U.  S.  205;  Aberdeen  Bank  v.  Chehalis  County, 
166  U.  S.  440;  Bank  of  Commerce  v.  Seattle,  166  U.  S.  463.) 

The  definitions  in  the  New  York  case  are: 

"Of  course  it  includes  shares  in  national  banks;  the  use  of 
the  word  'other'  requires  that.  If  bank  shares  were  not  mon- 
eyed   capital,    the    word    'other'    in    this    connection    would    bo 


503  CONSTITUTION  OF  1879.     Art.  XIII,  §  14 

without  significance.  But  'moneyed  capital'  does  not  mean  all 
capital,  the  value  of  which  is  measured  in  terms  of  money.  In 
this  sense,  all  kinds  of  real  and  personal  property  would  be 
embraced  by  it,  for  they  all  have  an  estimated  value  as  the 
subjects  of  sale.  Neither  does  it  necessarily  include  all  forms 
of  investments  in  which  the  interest  of  the  owner  is  expressed 
in  money.  Shares  of  stock  in  railroad  companies,  mining  com- 
panies, manufacturing  companies,  and  other  corporations,  are 
represented  by  certificates  showing  that  the  owner  is  entitled 
to  an  interest,  expressed  in  money  value,  in  the  entire  capital 
and  property  of  the  corporation,  but  the  property  of  the  cor- 
poration which  constitutes  its  invested  capital  may  consist 
mainly  of  real  and  personal  property,  which,  in  the  hands  of 
individuals,  no  one  would  think  of  calling  moneyed  capital, 
and    its    business   may   not    consist    in    any    kind    of    dealing   in 

money,    or    commercial    representatives    of    money 

"The  terms  of  the  act  of  Congress,  therefore,  include  shares 
of  stock  or  other  interests  owned  by  individuals  in  all  enter- 
prises, in  which  the  capital  employed  in  carrying  on  its  busi- 
ness is  money,  whore  the  object  of  the  business  is  the  making 
of  profit  by  its  use  as  money.  The  moneyed  capital  thus  em- 
ployed is  invested  for  that  purpose  in  securities  by  way  of 
loan,  discount,  or  otherwise,  which  are  from  time  to  time, 
according  to  the  rules  of  the  business,  reduced  again  to  money 
and  reinvested.  It  includes  money  in  the  hands  of  individuals 
employed  in  a  similar  way,  invested  in  loans  or  in  securities, 
for  the  payment  of  money,  either  as  an  investment  of  a  per- 
manent character,  or  temporarily  with  a  view  to  sale  or 
repayment  and  reinvestment.  In  this  way  the  moneyed  capital 
in  the  hands  of  individuals  is  distinguished  from  what  is 
known  generally  as  personal  property." 

2.  "Other  moneyed  capital"  defined  by  exclusion. 

(a)  Trmt  companies  under  the  New  York  statute  were  held  not 
to  be  competing  with  national  bai.ks.  (Jenkins  v.  Neff,  22  Sap 
Ct.  905.) 

(6)  Savings  banks  held  not  to  be  competing  with  national 
banks  even  when  lending  on  personal  security.  (Bank  of  Re- 
demption v.  Boston,  12.5  U.  S.  68;  Davenport  i3ank  v.  Davenport 
Bd.  of  Equalization,  12.3  U.  S.  83.) 

(c)  Building  and  Loan  Associations,  ibid.  (Mercantile  Nat. 
Bank  of  Cleveland  v.  Hubbard,  98  Fed.  465.) 


Art.  XIII,  §  14    CONSTITUTION  OF  1879.  504 

3.  "Taxation  shall  not  he  at  a  greater  rate." 

(a)  Equality  requires  equality  in  valuation  as  well  as  in  rate 
of  taxation. 

"This  valuation,  then,  is  part  of  the  assessment  of  taxes.  It  ia 
a  necessary  part  of  every  assessment  of  taxes  which  is  governed 
by  a  ratio  or  percentage.  There  can  be  no  ratio  or  percentage 
without  a  valuation.  This  taxation,  says  the  act,  shall  not  be  at 
a  greater  rate  than  is  assessed  on  other  monej^ed  capital.  What 
is  it  that  shall  not  be  greater?  The  answer  is,  taxation.  In  what 
respect  shall  it  be  not  greater  than  the  rate  assessed  upon  other 
capital?  We  see  that  Congress  had  in  its  mind  as  assessment, 
a  rate  of  assessment,  and  a  valuation,  and,  taking  all  these  to- 
gether, the  taxation  on  these  shares  was  not  to  be  greater  than 
on  other  moneyed  capital."  (People  v.  Weaver,  100  U.  S.  539, 
1.  c,  p.  545;  Merchants  and  Manufacturers'  Bank  v.  Penn.,  167 
U.  S.  461.) 

See,  also,  what  has  been  held  to  be  discriminations  and  what 
not,  B  6  and  C  9, 

B.     The  states  may  not: 

1.  Exact  a  license,  or  analogous  tax.  (Second  Nat.  Bank  of 
Titusville    (Pa.)   v.   Caldwell,   13  Fed.  429.) 

2.  Tax  any  property  of  national  banks  other  than  real  estate. 
(San  Francisco  v.  Bank,  92  Fed.  273;  Rosenblatt  v.  Johnston, 
104  U.  S.  462;  First  Nat.  Bank  v.  San  Francisco,  129  Cal.  96.) 

3.  Levy  a  tax  on  the  franchise.  (Owcnsboro  Nat,  Bank  v. 
Owensboro,   173   U.  S.  664.) 

4.  Tax  the  capital  of  the  bank  in  solido  against  the  bank. 
(Numerous  state  cases.) 

5.  Tax  the  shares  of  nonresident  shareholders  elsewhere  than 
in  the  town  or  city  where  the  bank  is  located. 

(The  real  meaning  of  this  has  not  been  brought  out  in  any 
cases,  save  that  it  prohibits  the  nonresident  shareholders'  home 
state  from  taxing  the  shares.) 

6.  Discriminate  against  national  banks  in  any  of  the  following 
ways  : 

(o)  By  allowing  state  banks  only  to  deduct  capital,  etc.,  in- 
vested in  exempt  securities.      (Bradley  v.  People,  4  Wall.  459.) 

(b)  By  levying  a  diflferent  rate  on  national  banks  than  on 
state  banks,  (Merchants  and  Manufacturers'  Bank  v.  Penn.,  167 
U.  S.  461.) 


505  CONSTITUTION  OF  1879.     Art.  XIII,  §  14 

(c)  By  exempting  from  local  taxation  a  very  material  part, 
relatively,  of  other  moneyed  capital  in  the  hands  of  individual 
citizens  within  the  same  jurisdiction  or  taxing  district.  (As 
railroad  and  other  securities.)      (Boyer  v.  Boyer,  113  U.  S.  689.) 

But  this  has  since  been  modified.      (See  definitions  A  1  c.) 

(d)  By  allowing  owners  of  personal  property  in  general  to 
"swear  off"  debts  from  personal  property  and  not  extending  the 
same  privilege  to  shareholders  in  national  banks.  (People  v. 
Weaver,  100  U.  S.  539;  Supervisors  v.  Stanley,  105  U.  S.  305: 
Hills  V.  Exchange  Bank,  105  U.  S.  319.) 

But  this  has  been  modified.     (See  C  9  f.) 

(e)  By  allowing  taxpayers  in  general  to  deduct  their  debts 
from  the  sum  of  their  credits,  moneys  at  interest,  and  demands 
against  persons  or  corporations,  and  not  allowing  same  from 
national  bank  shares.  (Whitbeck  v.  Mercantile  Bank,  127  U.  S. 
193;  Evansville  Bank  v.  Britton,  105  U.  S.  322.) 

But  this  has  been  modified.     (See  C  9  f.) 

if)  By  intentional  and  habitual  undervaluation  of  other  mon- 
eyed capital.  (Pelton  v.  National  Bank,  101  U.  S.  143;  Whitbeck 
V.  Mercantile  National  Bank  of  Cleveland,  127  U.  S.  193.) 

But  see  C  9  j. 

C.     The  states  may: 

1.  Tax  the  real  estate  of  national  banks  as  other  real  estate  is 
taxed.     (See  Revised  Statutes,  sec.  5219.) 

There  is  no  provision  in  the  federal  statute  that  the  assessed 
valuation  of  the  real  estate  must  be  deducted  from  the  capital 
in  determining  the  value  of  the  shares,  but  if  such  deduction  is 
allowed  in  any  other  cases,  as  of  other  corporations,  it  must  be 
allowed  to  national  banks.  (City  Nat.  Bank  v.  Paducah,  U.  S. 
Circuit  Court  of  Kentucky,  1  Nat.  Bank  Cases.  300.) 

This  view  is  generally  held  by  state  courts,  but  based  on  state 
statutes. 

The  federal  courts  have  held  that  if  the  state  allows  double 
taxation  of  other  moneyed  capital  invested  in  corporate  shares, 
by  the  taxation  of  both  the  shares  and  the  property,  the  rational 
bank  act  does  not  prohibit  the  same  thing  in  the  case  of  national 
banks.      (Peojile's   Nat.  Bank  v.  Marye,  -107   Fed.  570.) 

2.  Tax  the  shareholders  on  the  value  of  the  shares,  subject  to 
conditions  imposed.     See  statute. 


Att.  XIII,  §  14    CONSTITUTION  OP  1879.  506 

3.  Eequire  the  bank  to  pay  the  taxes  levied  on  shareholders,  as 
agent  for  shareholders.  (Nat.  Bank  v.  Commonwealth,  9  Wall. 
353.) 

4.  Collect  taxes  levied  on  shares  by  distraint.  (First  Nat. 
Bank  of  Omaha  v.  Douglas  County,  3  Dill.  330.) 

Also  enforce  other  pains  and  penalties  for  nonpayment. 
(Palmer  v.  McMahon,  133  U.  S.  660.) 

5.  Eequire  the  bank  to  pay  the  taxes  levied  on  shareholders, 
even  though  state  banks  are  not  required  to  do  so.  (Merchants' 
Bank  v.  Penn.,  167  U.  S.  461.) 

6.  Assess  the  shares  at  their  fair  cash  value  on  the  assumption 
that  the  bank  will  continue  its  business,  and  not  at  what  they 
would  be  worth  in  case  the  bank  should  be  wound  up.  (Nat. 
Bank  of  Commerce  v.  New  Bedford,  155  Mass.  313.) 

In  Hepburn  v.  School  Directors,  33  Wall.  480,  the  supreme 
court  held  that  the  par  value  of  the  stock  does  not  indicate  its 
value. 

7.  In  the  valuation  of  the  shares,  ignore  the  fact  that  the 
capital  or  surplus  is  invested  in  property  itself  exempt,  even  if 
in  United  States  bonds.  (Talbott  v.  Silver  Bow  County,  139 
U.  S.  438.) 

This  principle  extends  to  holding  of  bonds  or  stocks  taxed  in 
the  state.  (Pac.  Nat.  Bank  of  Tacoma  v.  Pierce  Co.,  20  Wash. 
675.) 

8.  Include  in  the  valuation  of  the  shares,  real  estate  located 
in  other  states  and  taxed  there.  (Commercial  Bank  v.  Chambers, 
182  U.  S.  556;  American  Coal  Co.  v.  County  Commissioners,  59 
Md.  185,  194.) 

Real  estate  within  the  state  and  taxed  there  must  be  deducted. 

9.  The  following  provisions  of  law  have  been  held  to  make  no 
discrimination  against  national  banks. 

(a)  Exempting  property  held  for  charitable  or  religious  uses. 

(b)  Exempting  mortgages,  judgments,  recognizances,  and 
money  owing  on  agreements  to  sell  real  estate. 

In  Hepburn  v.  School  Directors,  23  Wall.  480,  the  court  said: 
"This  is  a  partial  exemption  only.  It  was  evidently  intended  to 
prevent  a  double  burden  by  the  taxation  both  of  property  and 
debts  secured  upon  it.  Necessarily  there  maj^  be  other  moneyed 
capital,  as  such  is  not  exempt.  Some  part  of  it  only  is.  It  could 
not  have  been  the  intention  of  Congress  to  exempt  bank  shares 
from  taxation  because  some  moneyed  capital  was  exempt." 


507  CONSTITUTION  OF  1879.    Art.  XIII,  §  14 

Tliis  was  modifiecl  in  Boyer  v.  Boyer,  113  U.  S.  6S9.  See  under 
discriminations  proliibitcd,  B  6  c,  above. 

(c)  Exempting  shares  of  either  railroad,  business,  insurance  or 
mining  companies.  (Mercantile  Bank  v.  New  York,  121  U.  S. 
138.) 

(d)  Exempting  municipal  bonds.     (Case  last  above  cited.) 

(e)  Exempting  stocks  of  corporations  organized  under  laws 
of  other  states.      (Newark  Banking  Co.  v.  Newark,  121  U.  S.  163.) 

(/)  Allowing  deductions  of  debts  from  solvent  credits  when 
the  shares  of  state  banks  were  taxed  precisely  as  were  shares 
in  national  banks.  (Nat.  Bank  of  Wilmington  v.  Chapman,  IJB 
U.  S.  205.) 

(g)  Allowing  unincorporated  banks  to  deduct  debts  before 
determining  the  real  value  of  capital  employed.  (Case  last  above 
cited.) 

(h)  Failure  to  assess  other  moneyed  capital.  (Aberdeen  Bank 
V.  Chehalis  County,  166  U.  S.  440.) 

(This  seems  contrary  to  the  spirit  of  the  decision  in  San 
Francisco  Nat.  Bank  v.  Dodge.) 

(i)  A  difference  in  the  rate  of  taxation,  provided  state  banks 
and  "competing  moneyed  capital"  are  treated  in  the  same  way. 
(Merchants'  and  Manufacturers'  Bank  v.  Pennsylvania,  167  U.  S. 
461.) 

(j)  By  unintentional  differences  in  valuation  or  mere  mis- 
takes in  judgment.  (Stanley  v.  Supervisors  of  Albany,  121  U.  S. 
535;  Nat.  Bank  v.  Kimball,  103  U.  S.  732;  Exchange  Nat.  Bank 
v.  Miller,  19  Fed.  372.) 

But  these  rulings  are  shaken  by  San  Francisco  Nat.  Bank  v. 
Dodge. 

(k)  By  differences  in  the  valuation  of  different  classes  of 
personalty.  (Nat.  Bank  of  Baltimore  v.  Baltimore,  40  C.  C.  A. 
254,  100  Fed.  24.) 


Art.  XIV,  §  1    CONSTITUTION  OP  1879.  503 

ARTICLE  XIV. 

WATER  AND  WATER  RIGHTS. 

Section  1.  The  use  of  all  water  now  appropriated, 
or  that  may  hereafter  be  appropriated,  for  sale,  rental, 
or  distribution,  is  hereby  declared  to  be  a  public  use,  and 
subject  to  the  regulation  and  control  of  the  state,  in  the 
manner  to  be  prescribed  by  law ;  provided,  that  the  rates 
or  compensation  to  be  collected  by  any  person,  company, 
or  corporation  in  this  state  for  the  use  of  water  supplied 
to  any  city  and  county,  or  city  or  town,  or  the  inhabit- 
ants thereof,  shall  be  fixed,  annually,  by  the  board  of  su- 
pervisors, or  city  and  county,  or  city  or  town  council,  or 
other  governing  body  of  such  city  and  county,  or  city  or 
town,  by  ordinance  or  otherwise,  in  the  manner  that 
other  ordinances  or  legislative  acts  or  resolutions  are 
passed  by  such  body,  and  shall  continue  in  force  for  one 
year  and  no  longer.  Such  ordinances  or  resolutions 
shall  be  passed  in  the  month  of  February  of  each  year, 
and  take  effect  on  the  first  day  of  July  thereafter.  Any 
board  or  body  failing  to  pass  the  necessary  ordinances  or 
resolutions  fixing  water  rates,  where  necessary,  within 
such  time,  shall  be  subject  to  peremptory  process  to  com- 
pel action  at  the  suit  of  any  party  interested,  and  shall 
be  liable  to  such  further  processes  and  penalties  as  the 
legislature  may  prescribe.  Any  person,  company,  or 
corporation  collecting  water  rates  in  any  city  and 
county,  or  city  or  town  in  this  state,  otherwise  than  as 
so   established,  shall   forfeit  the   franchises  and   water- 


509  CONSTITUTION  OF  1879.      Art.  XIV,  §  1 

works  of  such  person,  company,  or  corporation  to  the 
city  and  county,  or  city  or  town  where  the  same  are  col- 
lected, for  the  public  use. 

USE  OF  WATER. — The  provisions  of  this  section  are  both 
self-executing  and  mandatory.  (Spring  Valley  W.  W.  v.  San 
Francisco,  61   Cal.   18.) 

All  the  provisions  of  the  constitution  in  regard  to  water  in 
municipalities  must  be  taken  and  read  together,  and  effect  given 
to  each  of  them.  They  must  receive  a  practical  coinmon-senso 
construction,  and  be  considered  with  reference  to  the  prior  state 
of  the  law,  and  the  mischief  intended  to  be  remedied.  (People 
V.  Stephens,  62  Cal.  209.) 

Prior  to  the  adoption  of  the  constitution  of  1879,  the  right 
of  laying  pipes  in  the  streets  of  any  incorporated  city  or  town 
for  the  purpose  of  supplying  the  inhabitants  thereof  with  water 
lav  only  in  grant  from  the  legislature.  (People  v.  Stephens, 
62   Cal.   209.) 

This  section  does  not  apply  to  a  case  of  a  corporation  which 
acquires  and  holds  water  solely  for, the  use  of  its  stockholders. 
(McFadden  v.  Los  Angeles,  74  Cal.  571,  16  Pac.  397.) 

The  water  right  of  a  corporation  which  was  in  private  owner- 
ship at  the  time  the  constitution  of  1879  was  adopted  did  not 
become  dedicated  to  the  public  use  by  the  adoption  of  the  con- 
stitution without  the  consent,  express  or  implied,  of  its  owners. 
(Stanislaus  Water  Co.  v.  Baehman,  152  Cal.  716,  93  Pac.  858, 
15  L.  R.  A.,  N.  S.,  359.) 

This  section  has  no  reference  to  water  furnished  by  a  munici- 
pality itself,  but  refers  to  the  rates  to  be  collected  for  water 
authorized  by  section  19,  article  11,  of  the  constitution,  to  be 
introduced  into  cities  by  individuals  or  companies  incorporated 
for  that  purpose.     (People  v.   Stephens,  62   Cal.  209.) 

By  this  section  water  is  declared  to  be  a  public  use,  subject 
to  the  control  and  regulation  of  the  legislature  in  the  manner 
prescribed  by  statute;  such  regulation,  however,  being  subject 
to  certain  constitutional  provisions,  and  among  them  the  provi- 
sion in  respect  to  rates.     (People  v.  Stephens,  62  Cal.  209.) 

Under  this  section  the  use  of  water  for  sale  is  a  public  use, 
and  the  price  at  which  it  shall  be  sold  is  a  matter  within  the 
power  of  the  board  of  supervisors  to  determine.  (Spring  Valley 
W.  W.  V.  San  Francisco,  82  Cal,  286,  16  Am.  St.  Eep.  110,  22 


Art.  XIV,  §  1    CONSTITUTION  OF  1879.  510 

Pac.  910,  6  L.  E.  A.  756;  Fellows  v.  Los  Angeles,  151  Cal.  52, 
90  Pac.  137.) 

This  section  was  not  intended  to  appropriate  water  for  the 
use  of  the  public  without  compensation.  (People  v.  Elk  etc. 
Co.,  107  Cal.  221,  48  Am.  St.  Eep.  125,  40  Pac.  531.) 

When  water  is  designated,  set  apart,  and  devoted  to  purposes 
of  sale,  rental,  or  distribution,  it  is  "appropriated"  within  the 
meaning  of  this  section,  without  reference -to  the  mode  of  its 
acctuisition.  (Merrill  v.  Southside  Irr.  Co.,  112  Cal.  426,  44  Pac. 
720.) 

A  land  owner  may,  by  contract  with  a  corporation  supplying 
water  for  irrigation,  acquire  and  attach  to  his  land  a  permanent 
right  to  the  use  of  water  for  irrigation.  (Stanislaus  Water  Co. 
V.  Bachman,  152  Cal.  716,  93  Pac.  858,  15  L.  E.  A.,  N.  S.,  359.) 

A  public  service  water  company  which  is  appropriating  water 
for  sale,  rental  and  distribution  under  the  constitution  cannot 
confer  upon  a  consumer  any  preferential  right  to  the  use  of  any 
part  of  its  water.  (Leavitt  v.  Lassen  Irr.  Co.,  157  Cal.  82,  106 
Pac.  404.) 

Under  this  section  it  is  made  the  duty  of  a  water  company 
supplying  water  for  distribution  to  furnish  water  upon  tender 
of  the  established  rates,  and  no  other  duty  than  such  tender  can 
be  lawfully  prescribed  or  imposed  by  such  company  as  a  condi- 
tion for  supplying  water  as  required  by  law.  (Crow  v.  San 
Joaquin  etc.  Irr.  Co.,  130  Cal.  309,  62  Pac.  562.) 

An  agreement  by  a  consumer,  upon  being  furnished  water 
upon  credit,  that  no  water  need  be  furnished  him  in  succeeding 
years  until  such  water  is  paid  for,  is  without  consideration, 
it  being  the  duty  of  the  company  to  furnish  him  the  water 
whether  he  made  such  agreement  or  not.  (Crow  v.  San  Joaquin 
etc.  Irr.  Co.,  130  Cal.  309,  62  Pac.  562,  Beatty,  C.  J.,  and  Mc- 
Farland,  J.,  dissenting.) 

It  is  the  duty  of  a  water  company  to  furnish  water  upon  tender 
of  the  established  rates.  (Lowe  v.  Yolo  Co.  etc.  Co.,  8  Cal.  App. 
167,  96   Pac.   379.) 

The  duty  to  furnish  water  arises  from  the  constitution  itself. 
(Lowe  V.  Yolo  County  etc.  Co.,  8  Cal.  App.  167,  96  Pac.  379.) 

For  failure  to  deliver  water,  exemplary  damages  may  be  recov- 
ered in  ease  of  fraud,  malice,  or  oppression.  (Lowe  v.  Yolo 
County  etc.  Co.,  8  Cal.  App.  167,  96  Pac.  379.) 

It  is  the  duty  of  a  canal  company  to  supply  water  for  irriga- 
tion under  the  following  conditions:  1.  The  land  for  which 
water   is   sought   to    irrigate   must   lie   within   the   flow   of   the 


511  CONSTITUTION  OF  1879.       Art.  XIV,  §  1 

ditch;  2.  A  showing  that  the  corporation  has  the  water  in  quan- 
tity required  to  supply  the  one  demanding  and  all  others  equally 
entitled;  3.  That  notice  be  given  the  irrigating  company  of  the 
amount  of  water  required;  4.  Payment  of  the  rates  or  tender 
thereof  when  due,  and  an  allegation  of  willingness  to  pay  when 
due.  (Cozzens  v.  North  Fork  Ditch  Co.,  2  Cal.  App.  404,  84  Pac. 
342.) 

A  petition  for  a  writ  of  mandate  to  compel  the  furnishing 
of  water  which  alleges  that  the  company  has  a  sufficient  amount 
of  water  to  supply  plaintiff,  but  does  not  allege  that  the  quan- 
tity is  sufiicient  for  plaintiff  and  others  equally  entitled  thereto 
is  insufficient.  (Cozzens  v.  North  Fork  Ditch  Co.,  2  Cal.  App. 
404,  84  Pac.  342.) 

A  petition  for  mandamus  alleging  that  defendant  was  incor- 
porated for  the  purpose,  and  is  engaged  in  the  business  of  dis- 
tributing water  for  compensation  to  the  residents  of  a  certain 
town,  of  which  petitioner  is  a  resident  and  freeholder,  and  has 
been  supplied  with  water,  and  the  company  has  a  sufficient 
quantity  to  supply  him,  sufficiently  shows  that  defendant  is  in 
control  of  a  public  use  and  that  plaintiff  is  a  beneficiary  of 
that  use.  (Mahoney  v.  American  Land  etc.  Co.,  2  Cal.  App. 
185,  83  Pac.  267.) 

A  person  engaged  in  furnishing  water  to  the  inhabitants  of 
a  city,  under  a  franchise  permitting  him  to  lay  pipes  through 
the  streets,  cannot  without  reasonable  cause  shut  off  the  water 
from  one  of  such  inhabitants,  who  is  using  the  same  at  a  fixed 
rate.     (McCrary  v.  Beaudry,  67  Cal.  120,  7  Pac.  264.) 

It  was  the  duty  of  the  legislature  to  enact  all  needful  laws 
to  carry  this  section  into  effect;  but  the  failure  of  the  legis- 
lature to  enact  such  laws  could  not  prevent  the  establishment 
of  the  rates  required  to  be  established  by  the  constitution. 
(People  V,  Stephens,  62  Cal.  209.) 

The  provision  of  the  act  of  1858,  requiring  water  companies 
to  furnish  water  free  of  charge  to  cities  and  counties,  was  abro- 
gated by  this  section.  (Spring  Valley  W.  W.  v.  San  Francisco, 
Gl  Cal.  18.) 

The  act  of  1858  providing  for  the  fixing  of  water  rates  by 
a  commission  was  superseded  by  this  section  of  the  constitu- 
tion.    (Spring  Valley  W.  W.  v.  San  Francisco,  61  Cal.  3.) 

A  water  company  has  the  right  to  shut  off  the  water  from 
a  consumer  who  refuses  to  pay  for  the  water  supplied.  (She- 
ward  V.  Citizens'  Water  Co.,  90  Cal.  635,  27  Pac.  439.) 


Art.  XIV,  §  1     CONSTITUTION  OF  1879.  512 

Water  rates. — By  this  section  the  power  to  fix  water  rates 
in  San  rianeisco  is  granted  solely  to  the  board  of  supervisors, 
and  the  mavor  has  no  power  to  veto  an  ordinance  fixing  such 
rates.     (Jacobs  v.  Supervisors,  100  Cal.  121,  34  Pac.  630.) 

The  supervisors  are  not  bound  to  give  notice  to  a  water 
company  of  its  intention  to  fix  water  rates;  but  they  must  make 
a  proper  effort  to  procure  all  necessary  information,  to  enable 
them  to  act  intelligently  and  fairly  in  fixing  the  rates.  (Spring 
Valley  W.  W.  v.  San  Francisco,  82  Cal.  286,  16  Am.  St.  Eep. 
116,  22  Pac.  910,  6  L.  E.  A.  756.) 

The  proceeding  to  fix  water  rates  is  not  adversary,  but  is 
conducted  without  notice  to  the  rate  payer  or  water  company! 
(San  Diego  Water  Co.  v.  San  Diego,  118  Cal.  556,  62  Am.  St. 
Eep.  261,  50  Pac.  633,  38  L.  E.  A.  460.) 

This  section  is  not  opposed  to  the  United  States  constitution 
in  not  giving  the  water  company  notice.  (San  Diego  Water  Co. 
V.  San  Diego,  118  Cal.  556,  62  Am.  St.  Eep.  261,  50  Pac.  633, 
38  L.  E.  A.  460.) 

If  the  board  acts  arbitrarily,  without  investigation,  or  with- 
out the  exercise  of  judgment  and  discretion,  or  fixes  rates  so 
palpably  unreasonable  and  unjust  as  to  amount  to  arbitrary 
action,  it  violates  its  duty  and  goes  beyond  the  powers  con- 
ferred upon  it.  (San  Diego  Water  Co.  v.  San  Diego,  118  Cal. 
556,  62  Am.  St.  Eep.  261,  50  Pac.  633,  38  L.  E.  A.  460.) 

Where  an  ordinance  fixing  rates  does  not  show  upon  its  face 
that  the  rates  to  be  collected,  where  the  amount  of  consumption 
is  ascertained  by  a  meter,  are  different  from  those  collected 
from  persons  who  are  rated  by  the  use  to  which  they  apply 
the  water,  it  will  not  be  held  invalid  because  that  may  be  the 
result.  (Sheward  v.  Citizens'  Water  Co.,  90  Cal.  635,  27  Pac. 
439.) 

The  action  of  the  city  council  in  fixing  rates  is  legislative 
and  it  is  to  receive  all  the  presumptions  and  sanctions  which 
belong  to  acts  of  legislative  bodies  generally;  and  the  rates 
must  be  assumed  to  have  been  so  fixed  as  to  be  just  both 
toward  the  rate  payer  and  the  company.  (Sheward  v.  Citizens' 
Water  Co.,  90  Cal.  635,  27  Pac.  439.) 

An  ordinance  fixing  water  rates,  and  providing  for  meter 
and  house  rates  at  the  option  of  the  consumer  and  providing 
that  the  meter  shall  be  supplied  at  the  expense  of  the  water 
company,  is  valid.  (Spring  Valley  W.  W.  v.  San  Francisco, 
82  Cal.  286,  16  Am.  St.  Eep.  116,  22  Pac.  910,  6  L.  E.  A.  756.) 


513  CONSTITUTION  OF  1879.      Art.  XIV,  §  1 

When  the  constitution  provides  for  the  fixing  of  rates,  or 
compensation  for  the  use  of  water,  it  means  reasonable  rates 
and  just  compensation.  (Spring  Valley  W.  W.  v.  San  Francisco, 
82  Cal.  286,  16  Am.  St.  Eep.  116,  22  Pac.  &10,  6  L.  K.  A.  756.) 

The  power  of  regulating  rates  is  not  a  power  of  confiscation, 
or  to  take  the  property  of  the  water  company  without  just  com- 
pensation; and,  if  the  power  is  arbitrarily  exercised,  without 
a  fair  investigation,  and  the  rates  are  so  fixed  as  to  render  it 
impossible  to  furnish  the  water  without  loss,  it  is  not  above 
the  control  of  the  courts.  (Spring  Valley  W.  W.  v.  San  Fran- 
cisco, 82  Cal.  2-86,  16  Am.  St.  Eep.  116,  22  Pac.  910,  6  L.  E.  A. 
756.) 

If  the  board  have  fairly  investigated  and  exercised  their 
discretion  in  fixing  the  rates,  the  courts  have  no  riglit  to  inter- 
fere on  the  sole  ground  that,  in  the  judgment  of  the  court,  the 
rates  fixed  are  not  reasonable.  (Spring  Valley  W.  W.  v.  San 
Francisco,  82  Cal.  286,  16  Am.  St.  Eep.  116,  22  Pac.  910,  6  L.  E. 
A.  756.) 

The  fixing  of  water  rates  is  not  judicial.  (Spring  Valley 
W.  W.  V.  Bartlett,  63  Cal.  245.) 

An  ordinance  establishing  water  rates,  and  fixing  certain  rates 
to  be  paid  by  individuals  and  certain  rates  to  be  paid  by  the 
city,  and  providing  that,  if  the  city  pays  its  rates,  the  rates 
of  the  individual  consumers  shall  be  diminished  twenty-five  per 
cent,  is  void,  as  the  city  has  no  power  to  make  such  condition. 
(San  Francisco  etc.  Factory  v.  Brickwedel,  60  Cal.  166.) 

See  further  as  to  water  rates,  notes  to  section  33,  article  4 
and  section  19,  article  11. 

Failure  to  fix  rates. — This  provision  does  not  authorize  the 
court  by  mandamus  to  compel  the  board  to  fix  the  rates,  where 
their  action  fixing  them  has  been  vetoed  by  the  mayor.  (Jacobs 
V.  Supervisors,  100  Cal.  121,  34  Pac.  630.) 

An  ordinance  fixing  rates  passed  subsequently  to  the  month 
of  February,  and  prior  to  July  1st,  when  it  is  required  to  take 
effect,  is  equally  valid,  if  passed  voluntarily,  as  if  passed  under 
peremptory  process.  (Fitch  v.  Supervisors,  122  Cal.  285,  54  Pac. 
901.) 

The  provision  of  this  section  authorizing  the  legislature  to 
prescribe  "further  processes  and  penalties"  only  authorizes  such 
processes  and  penaltifs  as  are  within  the  power  of  the  legisla- 
Constitution — 33 


Art.  XIV,  §  2      CONSTITUTION  OF  1879,  514 

ture,  in  view  of  other  limitations  of  tlie  constitution.  (Fitch 
V.  Supervisors,  122  Cal.  2S5,  5i  Pae.  901.) 

A  taxpayer  is  not  an  "interested  party"  within  the  meaninj^ 
of  this  section.  (Fitch  v.  Supervisors,  122  Cal.  285.  54  Pac. 
901.) 

In  view  of  section  20,  article  6,  the  legislature  cannot  au- 
thorize the  removal  of  a  board  of  supervisors  from  office  for 
delay  in  fixing  water  rates  "at  the  suit  of  any  interested  party," 
or  in  the  name  of  any  individual.  (Fitch  v.  Supervisors,  122 
Cal.  285,  54  Pac.  901.) 

Where  the  owners  of  water  unite  in  some  joint  method  of 
distributing  the  water  among  them,  such  as  the  formation  of  a 
corporation,  this  does  not  make  the  water  a  public  use.  (Hil- 
dreth  v.  Montecito  C.  W.  Co.,  139  Cal.  22,  72  Pac.  395.) 

Where  the  execution  of  an  ordinance  fixing  water  rates  has 
been  enjoined,  the  city  may,  pending  such  injunction,  enter  into 
an  agreement  with  the  water  company  fixing  a  price  to  be  pai(? 
by  the  city  for  water  furnished.  (Contra  Costa  W.  Co.  v.  Breed, 
139  Cal.  432,  73  Pac.  189.) 

The  words  "otherwise  than  as  so  established,"  mean  in  viola- 
tion of  or  contrary  to  the  established  rates.  (Contra  Costa  W. 
Co.  V.  Breed,  139  Cal.  432,  73  Pac.  189.) 

As  to  the  effect  of  an  injunction  forbidding  the  execution  of 
an  ordinance  establishing  water  rates,  see  Contra  Costa  W.  Co. 
V.  Breed,  139  Cal.  432,  73  Pac.  189. 

Sec.  2.  The  right  to  collect  rates  or  compensation  for 
the  use  of  water  supplied  to  any  county,  city  and  county, 
or  town,  or  the  inhabitants  thereof,  is  a  franchise,  and 
cannot  be  exercised  except  by  authority  of  and  in  the 
manner  prescribed  by  law. 

WATER  RATES. — The  right  to  collect  rates  for  water  is  a 
franchise.  (Spring  Valley  W.  W.  v.  Schottler,  62  Pac.  69; 
People  V.  Stephens,  62  Cal.  209;  San  Joaquin  etc.  Co.  v.  Merced 
County,  2  Cal.  App.  593,  84  Pac.  285.) 

This  section  does  not  take  away  the  right  under  the  general 
law  of  the  land  to  collect  rates  or  compensation  fixed  by  con- 
tract of  the  parties  for  the  irrigation  of  lands,  in  the  absence 
of  a  special  statute,  or  authorized  provision,  regulating  such 
rates,     (Fresno  Caoal  etc.  Co.  v.  Park,  129  Cal.  437,  62  Pac.  87.) 


515  CONSTITUTION  OF  1879.    Art.  XV,  §§  1-3 

ARTICLE  XV. 

HARBOR  FRONTAGES,  ETC. 

Section  1.  The  right  of  eminent  domain  is  hereby  de- 
clared to  exist  in  the  state  to  all  frontages  on  the  naviga- 
ble waters  of  this  state. 

Sec.  2.  No  individual,  partnership,  or  corporation, 
claiming  or  possessing  the  frontage  or  tidal  lands  of  a 
harbor,  bay,  inlet,  estuary,  or  other  navigable  water  in 
this  state,  shall  be  permitted  to  exclude  the  right  of  way 
to  such  water  whenever  it  is  required  for  any  public  pur- 
pose, nor  to  destroy  or  obstruct  the  free  navigation  of 
such  water;  and  the  legislature  shall  enact  such  laws  as 
will  give  the  most  liberal  construction  to  this  provision, 
so  that  access  to  the  navigable  waters  of  this  state  shall 
be  always  attainable  for  the  people  thereof. 

NAVIGABLE  WATERS. — If  dams  upon  tidewater  sloughs, 
though  the  sloughs  be  not  themselves  navigable,  result  in  the 
obstruction  of  a  navigable  stream,  they  constitute  a  public 
nuisance,  and  are  forbidden  by  this  section.  (People  v.  Russ, 
132  Cal.  102,  64  Pac.  111.) 

Sec.  3.  All  tide  lands  within  two  miles  of  any  incor- 
porated city  or  town  in  this  state,  and  fronting  on  the 
waters  of  any  harbor,  estuary,  bay,  or  inlet  used  for  the 
purposes  of  navigation,  shall  be  withheld  from  grant  or 
sale  to  private  persons,  partnerships,  or  corporations. 


Art.  XV,  §  3        CONSTITUTION  OF  1879.  516 

Tide  lands. — The  constitutional  injunction  against  the  grant 
or  sale  of  "tide  lands  within  two  miles  of  any  incorporated 
city  or  town  in  this  state,  and  fronting  on  the  waters  of  any 
harbor,  estuary,  bay,  or  inlet,"  forbids  the  legislature  from  dis- 
posing of  them  in  any  manner,  and  the  statute  of  limitations 
in  respect  to  lands  owned  by  the  state  is  subordinate  to  this 
constitutional  provision,  and  is  thereby  made  inapplicable  to 
such  lands.  (People  v.  Kerber,  152  Cal.  731,  125  Am.  St.  Kep. 
93,  93  Pac.  878.) 


517i  CONSTITUTION  OF  1879.      Art.  XVI,  §  1 

ARTICLE  XVI. 

STATE  INDEBTEDNESS. 

Section  1.  The  legislature  shall  not,  in  any  manner 
create  any  debt  or  debts,  liability  or  liabilities,  which 
shall,  singly  or  in  the  aggregate  with  any  previous  debts 
or  liabilities,  exceed  the  sum  of  three  hundred  thousand 
dollars,  except  in  case  of  war  to  repel  invasion  or  sup- 
press insurrection,  unless  the  same  shall  be  authorized  by 
law  for  some  single  object  or  work  to  be  distinctly  speci- 
fied therein  which  law  shall  provide  ways  and  means, 
exclusive  of  loans,  for  the  payment  of  the  interest  of 
such  debt  or  liability  as  it  falls  due,  and  also  to  pay  and 
discharge  the  principal  of  such  debt  or  liability  within 
seventy-five  years  of  the  time  of  the  contracting  thereof, 
and  shall  be  irrepealable  until  the  principal  and  interest 
thereon  shall  be  paid  and  discharged,  and  such  law  may 
make  provision  for  a  sinking  fund  to  pay  the  principal 
of  such  debt  or  liability  to  commence  at  a  time  after  the 
incurring  of  such  debt  or  liability  of  not  more  than  a 
period  of  one-fourth  of  the  time  of  maturity  of  such 
debt  or  liability ;  but  no  such  law  shall  take  effect  until, 
at  a  general  election,  it  shall  have  been  submitted  to  the 
people  and  shall  have  received  a  majority  of  all  the  votes 
cast  for  and  against  it  at  such  election ;  and  all  moneys 
raised  by  authority  of  such  law  shall  be  applied  only  to 
the  specific   object  therein   stated   or  to  the  payment  of 


Art.  XVI,  §  1      CONSTITUTION  OF  1879.  518 

the  debt  thereby  created,  and  such  law  shall  be  published 
in  at  least  one  newspaper  in  each  county,  or  city  and 
county,  if  one  be  published  therein  throughout  the  state 
for  three  months  next  preceding  the  election  at  which  it 
is  submitted  to  the  people.  The  legislature  may,  at  any 
time  after  the  approval  of  such  law  by  the  people,  if  no 
debt  shall  have  been  contracted  in  pursuance  thereof,  re- 
peal   the    same.      (Amendment    adopted    November    3, 

1908.) 

[ORIGINAL  SECTION.] 

Section  1.  The  legislature  shall  not,  in  any  manner,  create 
any  debt  or  debts,  liability  or  liabilities,  which  shall,  singly 
or  in  the  aggregate  with  any  previous  debts  or  liabilities,  exceed 
the  sum  of  three  hundred  thousand  dollars,  except  in  case  of  war 
to  repel  invasion  or  suppress  insurrection,  unless  the  same  shall 
be  authorized  by  law  for  some  single  object  or  work  to  be 
distinctly  specified  therein,  which  law  shall  provide  ways  and 
means,  exclusive  of  loans,  for  the  payment  of  the  interest  of 
such  debt  or  liability  as  it  falls  due,  and  also  to  pay  and  dis- 
charge the  principal  of  such  debt  or  liability  within  twenty 
years  of  the  time  of  the  contracting  thereof,  and  shall  be  irre- 
pealable  until  the  principal  and  interest  thereon  shall  be  paid 
and  discharged;  but  no  such  law  shall  take  effect  until,  at  a 
general  election,  it  shall  have  been  submitted  to  the  people 
and  shall  have  received  a  majority  of  all  the  votes  east  for  and 
against  it  at  such  election;  and  all  moneys  raised  by  authority 
of  such  law  shall  be  applied  only  to  the  specific  object  therein 
stated,  or  to  the  payment  of  the  debt  thereby  created,  and  such 
law  shall  be  published  in  at  least  one  newspaper  in  each  county, 
or  city  and  county,  if  one  be  published  therein,  throughout  the 
state,  for  three  months  next  preceding  the  election  at  which  it 


519  CONSTITUTION  OF  1879.      Art.  XVI,  §  1 

is  submitted  to  the  people.  The  legislature  may  at  any  time 
after  the  approval  of  such  law  by  the  people,  if  no  debt  shall 
have  been  contracted  in  pursuance  thereof,  repeal  the  same. 

STATE  INDEBTEDNESS.— The  political  department  of  the 
state  government  is  the  sole  judge  of  the  existence  of  war  or 
insurrection.  (Franklin  v.  State  Board,  23  Cal.  173;  People  v. 
Pacheco,  27  Cal.  175.) 

An  appropriation  for  the  purpose  of  repelling  an  invasion  or 
suppressing  insurrection,  reciting  the  existence  of  such  war, 
is  conclusive  evidence  of  its  existence.  (People  v.  Pacheco, 
27  Cal.  175;  Eeis  v.  State,  133  Cal.  593,  65  Pac.  1102.) 

The  constitution  does  not  impose  any  limitation  upon  the 
amount  of  state  indebtedness  in  case  of  war,  to  repel  invasion 
or  suppress  insurrection.  (Franklin  v.  State  Board,  23  Cal. 
173.) 

This  section  was  intended  to  prevent  the  state  from  running 
into  debt,  and  to  keep  her  expenditures,  except  in  certain  cases, 
within  her  revenues.  These  revenues  may  be  appropriated  in 
anticipation  of  their  receipt  as  effectually  as  when  actually  in 
the  treasury.  The  appropriation  of  the  moneys  when  received 
meets  the  services  as  they  are  rendered,  thus  discharging  the 
liabilities  as  they  arise,  or  rather  anticipating  and  preventing 
their  existence.     (State  v.  McCauley,  15  Cal.  429.) 

This  provision  is  an  express  restriction  upon  the  power  of  the 
legislature,  and  there  is  no  power  in  the  judiciary  to  set  it  aside, 
whatever  inconvenience  may  result  from  a  legitimate  applica- 
tion of  it.  It  is  not  simply  advisory  to  the  legislature,  but  is 
mandatory.     (Nougues  v.  Douglass,  7  Cal.  65.) 

It  includes  the  necessary  and  ordinary  expenses  of  the  state, 
and  includes  an  expenditure  for  the  erection  of  a  state  capitol. 
(Nougues  V.  Douglass,  7  Cal.  65.) 

This  provision  expressly  prohibits  the  legislature  from  creat- 
ing a  debt  in  any  case  which  shall,  in  the  aggregate  with 
previous  debts  and  liabilities  of  the  state,  exceed  the  sum  of 
three  hundred  thousand  dollars,  except  for  the  purj)Oses  and  in 
the  manner  herein   provided.      (People  v.  Johnson,  6  Cal.  499.) 

This  provision  is  not  limited  to  the  power  to  borrow  money, 
hut  includes  all  kinds  of  indebtedness  and  an  indebtedness  fox 
constructing  a  road.     (People  v.  Johnson,  6  Cal.  499.) 


Art.  XVI,  §  1       CONSTITUTION  OF  1879.  520 

It  does  not  apply  to  counties  or  municipal  corporations. 
(Pattison  v.  Yuba  County,  13  Cal.  175.) 

This  provision  distinguished  from  the  provision  of  the  charter 
of  San  Francisco  in  Argenti  v.  San  Franeiseo,  16  Cal.  255. 

The  act  creating  the  board  of  state  prison  commissioners  is 
not  in  violation  of  this  section,  since  the  sums  to  be  paid  were 
to  be  paid  in  the  future,  and  upon  the  performance  of  future 
services,  and  until  such  services  v/ere  performed  there  was  no 
debt  against  the  state.  (State  v.  McCauley,  15  Cal.  429;  Mc- 
Cauley  v.  Brooks,  16  Cal.  11.) 

An  act  providing  for  the  construction  of  a  state  capitol, 
and  only  authorizing  the  commissioners  to  contract  for  one  hun- 
dred thousand  dollars  is  not  in  violation  of  this  section,  (Koppi- 
kus  V.  State  Capitol  Commrs.,  16  Cal.  248.) 

An  act  which  appropriates  a  sum  of  money  for  the  future 
and  directs  certain  payments  to  be  made  out  of  the  same  at 
designated  periods,  from  year  to  year,  and  which  imposes  a 
special  tax  to  meet  the  same  as  they  become  payable,  is  valid. 
(People  v.  Pacheco,  27  Cal.  175.) 

Indebtedness  which  has  been  authorized  by  the  people,  debts 
actually  paid,  and  current  liabilities  of  the  state  for  which  pro- 
vision is  made  by  appropriation  from  current  revenue,  cannot 
be  considered  in  determining  whether  the  legislature  has  ex- 
ceeded the  constitutional  limitation.  (Bickerdike  v.  State,  144 
Cal.  681,  78  Pac.  270.) 

The  coyote  bounty  act  did  not  create  any  debt  within  the 
meaning  of  this  section.  (Bickerdike  v.  State,  144  Cal.  681, 
78  Pac.  270.) 

Publication  of  act. — In  the  absence  of  a  provision  in  the 
"San  Francisco  sea-wall  act,"  for  the  publication  required  by 
this  section,  the  duty  to  provide  for  the  publication  devolved 
upon  the  governor.  (Spear  v.  Beeves,  148  Cal.  501,  83  Pac. 
432.) 

In  discharging  the  duty  of  making  the  publication  required 
by  this  section,  it  was  not  necessary  for  the  governor  to  act 
personally;  but  it  was  sufficient  that  he  directed  the  secretary 
of  Stat©  to  make  it.  (Spear  v.  Beeves,  148  Cal.  501,  83  Pac. 
432.) 

It  is  not  necessary  that  the  act  as  published  should  be  officially 
attested.     (Spear  v.  Beeves,  148  Cal.  501,  83  Pac.  432.) 


521  CONSTITUTION  OF  1879.    Art.  XVII,  §  1 

ARTICLE  XVII. 

LAND  AND  HOMESTEAD  EXEMPTION. 

§  1.     Homesteads. 

§  2.     Land  monopoly. 

§  3.     Lands  granted  only  to  actual  settlers. 

Homesteads. 

Section  1.  The  legislature  shall  protect,  by  law,  from 
forced  sale  a  certain  portion  of  the  homestead  and  other 
property  of  all  heads  of  families. 

HOMESTEAD. — The  word  "homestead"  is  here  used  in  the 
popular  sense,  and  represents  the  dwelling-house  at  which  the 
family  resides,  with  the  usual  appurtenances,  including  out- 
buildings of  every  kind  necessary  and  convenient  for  family 
use,  and  land  used  for  the  purposes  thereof.  (Gregg  v.  Bost- 
wick,  33  Cal.  220,  91  Am.  Dec.  637.) 

This  section  does  not  of  itself  create,  nor  does  it  vest,  home- 
stead rights  in  persons  falling  within  the  general  description,  it 
is  merely  directory.  An  act  making  the  failure  to  file  a  declara- 
tion of  homestead  a  forfeiture  of  the  homestead  right  is  valid. 
(Noble  V.  Hook,  24  Cal.  638.) 

The  constitution  contemplates  legislation  to  exempt  the  home- 
stead from  forced  sale,  but  not  to  restrain  voluntary  alienation. 
(Gee  V.  More,  14  Cal.  472.) 

This  provision  is  inoperative  in  itself,  and  looks  to  legislation 
to  determine  how  far  and  in  what  manner  the  homestead  shall 
be  protected  from  forced  sale.     (Carey  v.  Tiee,  6  Cal.  6L'5.) 

It  looks  to  the  legislature  to  fix  the  extent  of  the  right  and 
the  mode  of  its  protection,  with  the  limitation  of  the  rights 
of  creditors  therein.  (Beaton  v.  Eeid,  111  Cal.  481,  44  Pac. 
167.) 

This  provision  does  not  restrict  the  power  of  the  legislaturo 
to  give  homesteads  to  heads  of  families  only.  (Hohn  v.  Pauly, 
11  Cal.  App.  724,  106  Pac.  266.) 


Art.  XVII,  §§  2,  3     CONSTITUTION  OF  1879.  522 

The  constitution  is  based  upon  the  idea  that  the  homestead 
is  to  be  carved  out  of  the  property  of  the  husband,  or  at  least 
out  of  the  co.iimo:i  property,     (Gee  v.  More,  14  Cal.  472.) 

If  in  the  country,  the  homestead  may  include  a  garden  or 
farm;  if  in  a  town  or  city,  it  may  include  one  or  more  lots  or 
blocks.  It  need  not  be  compact  in  form,  and  is  not  measured 
by  fences  merely.  The  only  tests  are  use  and  value.  (Gregg  v. 
Bostwick,  33  Cal.  220,  91  Am.  Dec.  637.) 

Statutes  for  the  purpose  of  carrying  out  the  constitutional 
command  as  to  the  preservation  of  the  homestead  for  the  family 
are  remedial,  and  should  be  liberally,  or  at  least  fairly  and  rea- 
sonably, and  not  strictly,  construed.  (Southwick  v.  Davis,  78 
Cal.  504,  21  Pac.  121.) 

As  to  what  constitutes  a  homestead,  see  Estate  of  Gallagher, 
134  Cal.  96,  66  Pac.  70. 

Land  monopoly. 

Sec.  2.  The  holding  of  large  tracts  of  land,  unculti- 
vated and  unimproved,  by  individuals  or  corporations, 
is  against  the  public  interest,  and  should  be  discouraged 
by  all  means  not  inconsistent  with  the  rights  of  private 
property. 

TRACTS  OF  LAND.— This  section  declares  a  policy  against 
the  holding  of  large  tracts  of  land  uncultivated,  and  this  policy 
should  not  be  limited  by  a  narrow  construction  of  the  constitu- 
tion.    (Fulton  V.  Brannan,  88  Cal.  454,  2.6  Pac.  506.) 

Lands  granted  only  to  actual  settlers. 

Sec.  3.  Lands  belonging  to  this  state,  which  are  suita- 
ble for  cultivation,  shall  be  granted  only  to  actual 
settlers,  and  in  quantities  not  exceeding  three  hundred 
and  twenty  acres  to  each  settler,  under  such  conditions 
as  shall  be  prescribed  by  law. 


523  CONSTITUTION  OF  1879.     Art.  XVII,  §  3 

PUBLIC  LANDS. — The  provision  of  this  section  that  "lands 
belonging  to  the  state  which  are  suitable  for  cultivation,  shall 
be  granted  only  to  actual  settlers"  operates  on  applications 
made  before  as  well  as  those  made  after  the  constitution  took 
effect.  (Johr.son  v.  Squires,  55  Cal.  103;  Mosely  v.  Torrence, 
71  Cal.  318,  12  Pac.  430.) 

This  section  speaks  with  reference  to  the  condition  of  the  land 
at  the  initixtion  of  proceedings  for  purchase.  (Boggs  v. 
Ganeard,  148  Cal.  711,  84  Pac.  195.) 

An  application  to  purchase  state  lands  made  by  one  not  an 
actual  settler,  before  the  adoption  of  the  new  constitution, 
and  who  had  made  no  payments  thereon,  conferred  no  right  to 
purchase  such  lands  after  the  adoption  of  the  constitution. 
(Urton  V.  Wilson,  65  Cal.  11,  2  Pac.  411.) 

A  certificate  of  purchase,  obtained  before  the  adoption  of  the 
new  constitution,  is  not  impaired  by  this  section.  (Miller  v. 
Byrd,  90  Cal.  150,  27  Pac.  51.) 

"Suitable  for  cultivation." — The  phrase,  "lands  belonging  to 
the  state  which  are  suitable  for  cultivation,"  includes  all  of  its 
lands  which  are  ready  for  occupation,  and  which,  by  ordinary 
farming  processes,  are  fit  for  agricultural  purposes.  Thus 
swamp-lands  may  be  suitable  for  cultivation.  (Fulton  v.  Bran- 
nan,  88  Cal.  454,  26  Pac.  506;  Goldberg  v.  Thompson,  96  Cal. 
117,  30  Pac.  1019;  McNee  v.  Lynch,  88  Cal.  519,  26  Pac.  508; 
McDonald  v.  Tavlor,  89  Cal.  42,  26  Pac.  595;  Belcher  v.  Farren, 
89  Cal.  73,  26  Pac.  791;  Dewar  v.  Euiz,  89  Cal.  385,  26  Pac.  832; 
Manley  v.  Cunningham,  72  Cal.  236,  13  Pac.  622.) 

The  words  "suitable  for  cultivation"  mean  all  lands  ready 
for  occupation  and  which  by  ordinary  farm  processes  are  fit 
for  agricultural  purposes.  (Robinson  v.  Eberhart,  148  Cal.  495, 
83  Pac.  452.) 

It  is  a  question  of  fact  whether  state  land  is  suitable  or  un- 
suitable for  cultivation.  (Robinson  v.  Eberhart,  148  Cal.  495, 
83  Pac.  452.) 

Desert  land  is  not  suitable  for  cultivation,  although  it  might 
be  develoi'cd  bv  boring  artesian  wells.  (Robinson  v.  Eberhart, 
148  Cal.  495,  83  Pac.  452.) 

The  fact  that  the  land  is  in  most  places  heavily  covered  with 
redwood  timber  and  brush,  that  it  would  not,  when  cleared, 
produce  ordinary  agricultural  -"rops  in  average  quantities,  and 
that  it  is  more  valuable  for  timber  than  for  agriculture,  does 


Art.  XVII,  §  3     CONSTITUTION  OF  1879.  524 

not  render  it  unsuitable  for  cultivation.  (Jacob  v.  "Walker, 
90  Cal.  43,  27  Pac.  48.) 

Where  some  portion  of  each  subdivision  is  suitable  for  culti- 
vation, the  land  cannot  be  purchased  by  one  not  a  settler. 
(Sanford  v.  Maxwell,  3   Cal.  App.  242,  84  Pac.  1000.) 

The  definition  of  lands  suitable  for  cultivation  contained  in 
section  3495  of  the  Political  Code  cannot  be  deemed  to  be  ex- 
clusive, as  that  would  render  the  section  unconstitutional. 
(Sanford  v.  Maxwell,  3  Cal.  App.  242,  84  Pac.  1000.) 

A  tract  of  land  one-third  of  which  as  a  whole  is  suitable 
for  cultivation  can  only  be  sold  to  an  actual  settler.  (Sanford 
V,  Maxwell,  3  Cal.  App.  242,  84  Pac.  1000.) 

The  words  "suitable  for  cultivation"  mean  all  tracts  of  land 
on  which  there  is  arable  or  tillable  land  sufficient,  with  the  use 
of  other  lands  for  pasture  or  otherwise,  to  furnish  a  permanent 
support  for  the  settler.  (Sanford  v.  Maxwell,  2  Cal.  App.  242, 
84  Pac.  1000.) 

Actual  settlers. — An  actual  settler  is  one  who  establishes 
himself  upon  the  land,  or  fixes  his  residence  upon  it,  to  take 
possession  for  his  exclusive  occupancy  and  use,  with  a  view 
of  acquiring  title  to  it  bv  purchase  from  the  state.  (Gavitt 
V.  Mohr,  68  Cal.  506,  10  Pac.  337.) 

Under  this  section  a  claimant  to  purchase  state  lands  which 
are  suitable  for  cultivation  must  be  at  the  time  of  his  applica- 
tion an  actual  settler  thereon.  (Gavitt  v.  Mohr,  68  Cal.  506,  10 
Pac.  337.) 

The  fact  that  an  applicant  living  upon  swamp-land  suitable 
for  cultivation  removed  Ms  family  therefrom  temporarily,  be- 
cause of  ill-health  of  a  member  of  his  family,  does  not  show 
nor  tend  to  show  that  he  was  not  an  actual  settler.  (Maddux 
V.  Brown,  91  Cal.  523,  27  Pac.  771.) 

Intervention. — An  actual  settler  has  a  right  to  intervene  in 
a  contest  of  the  right  to  purchase  before,  but  not  after,  judg- 
ment.    (Smith  v.  Koberts,  1  Cal.  App.  148,  81  Pac.  1026.) 

A  person  who  has  made  application  to  purchase  land,  and 
whose  application  has  been  rejected,  cannot  intervene  in  a  con- 
test between  other  claimants  and  raise  the  point  that  the  parties 
had  agreed  to  divide  the  land  in  order  to  evade  the  provision 
of  this  section.     (Youle  v.  Thomas,  146  Cal.  537,  80  Pac.  714.) 


525  CONSTITUTION  OP  1879.    Art.  XVIII,  §  1 

ARTICLE  XVIII. 

AMENDING  AND  REVISING  THE  CONSTITUTION. 

§   1.     Proposal  of  amendments — Submission  to  vote. 
§  2.     Revision — Convention  for. 

Proposal  of  amendments — Submission  to  vote. 

Section  1.  Any  amendment  or  amendments  to  this 
constitution  may  be  proposed  in  the  senate  or  assembly, 
and  if  two-thirds  of  all  the  members  elected  to  each  of 
the  two  houses  shall  vote  in  favor  thereof,  such  pro- 
posed amendment  or  amendments  shall  be  entered  in 
their  journals,  with  the  yeas  and  naj^s  taken  thereon ; 
and  it  shall  be  the  duty  of  the  legislature  to  submit  such 
proposed  amendment  or  amendments  to  the  people  in 
such  manner,  and  at  such  time,  and  after  such  publica- 
tion, as  may  be  deemed  expedient.  Should  more  amend- 
ments than  one  be  submitted  at  the  same  election  they 
shall  be  so  prepared  and  distinguished,  by  numbers  or 
otherwise,  that  each  can  be  voted  on  separately.  If  the 
people  shall  approve  and  ratify  such  amendment  or 
amendments,  or  any  of  them,  by  a  majority  of  the  quali- 
fied electors  voting  thereon,  such  amendment  or  amend- 
ments shall  become  a  part  of  this  constitution. 

CONSTITUTIONAL  AMENDMENTS. — A  general  act  as  to 
the  submission  of  constitutional  amendments  is  valid;  and  it  is 
not  necessary  that  an  amendment  be  submitted  specially  by  the 
legislature  proposing  it.  (Martin  v.  Election  Commrs.,  126  Cal. 
404,  58  Pac.   932.) 


Art.  XVIII,  §  2     CONSTITUTION  OF  1879.  526 

When  the  Political  Code  provides  for  the  certification  of 
proposed  constitutional  amendments  by  the  secretary  of  state 
to  the  county  clerks  "not  less  than  twenty-five  days  before  elec- 
tion,"' and  provides  for  the  printing  of  such  amendments  upon 
the  ballots,  it  is  to  be  presumed  that  they  are  to  be  voted  upon 
at  the  next  general  election  after  the  proposal  of  the  amendment, 
and  this  section  is  sufficiently  complied  with.  (People  v.  Curry, 
130  Cal.  82,  62  Pac.  516,  Temple,  J.,  and  Harrison,  J.,  dissent- 
ing-) 

The  constitution  does  not  permit  the  legislature  to  propose 
an  amendment  that  will  not  upon  its  adoption  by  the  people 
become  an  effective  part  of  the  constitution;  nor  one  which, 
if  ratified  will  take  effect  only  at  the  will  of  other  persons, 
or  upon  the  approval  of  such  other  persons,  or  on  some  specified 
act  or  condition.  (Livermore  v,  Waite,  102  Cal.  113,  36  Pac. 
424,  25  L.   E.  A.  312.) 

The  constitution  can  neither  be  revised  nor  amended,  except 
in  the  manner  prescribed  by  itself,  and  the  power  conferred 
upon  the  legislature  by  this  section  must  be  strictly  construed. 
(Livermore  v.  Waite,  102  Cal.  113,  36  Pac.  424,  25  L.  R.  A.  312.) 

The  time  at  which  a  proposed  amendment  to  the  constitution 
is  to  be  submitted  to  the  people  for  ratification  must  be  fixed 
by  an  act  of  the  legislature,  approved  by  the  governor  in  the 
same  manner  as  other  acts.  (Hatch  v.  Stoneman,  66  Cal.  632, 
6  Pac.  734.) 

An  amendment  need  not  be  entered  in  the  journals  at  length, 
but  it  is  sufficient  if  entered  by  identifying  reference  to  the 
title  of  the  amendment.  (Thomason  v.  Euggles,  69  Cal.  465, 
11  Pac.  20;  Oakland  Pav.  Co.  v.  Tompkins,  72  Cal.  5,  1  Am. 
St.  Rep.  17,  12  Pac.  801;  Thomason  v.  Ashworth,  73  Cal.  73, 
14  Pac.  615.  But  see  Oakland  Pav.  Co.  v.  Hilton,  69  Cal.  479, 
11  Pac.  3.) 

The  certificate  of  the  secretary  of  state  showing  the  adoption 
of  an  amendment  to  the  constitution  is  conclusive  of  the  fact 
that  the  same  has  been  duly  ratified.  (Kingsbury  v.  Nye,  9 
Cal.   App.   574,   99   Pac.   985.) 

Revision — Convention  for. 

Sec.  2.  Whenever  two-thirds  of  the  members  elected 
to  each  branch  of  the  legislature  shall  deem  it  necessary 


627  Constitution  or  1879.    Art.  XVIII,  §  2 

to  revise  this  constitution,  they  shall  recommend  to  the 
electors  to  vote  at  the  next  general  election  for  or  against 
a  convention  for  that  purpose,  and  if  a  majority  of  the 
electors  voting  at  such  election  on  the  proposition  for  a 
convention  shall  vote  in  favor  thereof,  the  legislature 
shall,  at  its  next  session,  provide  by  law  for  calling  the 
same.  The  convention  shall  consist  of  a  number  of  dele- 
gates not  to  exceed  that  of  both  branches  of  the  legisla- 
ture, who  shall  be  chosen  in  the  same  manner,  and  have 
the  same  qualifications,  as  members  of  the  legislature. 
The  delegates  so  elected  shall  meet  within  three  months 
after  their  election  at  such  place  as  the  legislature  may 
direct.  At  a  special  election  to  be  provided  for  by  law, 
the  constitution  that  may  be  agreed  upon  by  such  con- 
vention shall  be  submitted  to  the  people  for  their  ratifi- 
cation or  rejection,  in  such  manner  as  the  convention 
may  determine.  The  returns  of  such  election  shall,  in 
such  manner  as  the  convention  shall  direct,  be  certified  to 
the  executive  of  the  state,  who  shall  call  to  his  assistance 
the  controller,  treasurer,  and  secretary  of  state,  and  com- 
pare the  returns  so  certified  to  him ;  and  it  shall  be  the 
duty  of  the  executive  to  declare,  by  his  proclamation, 
such  constitution,  as  may  have  been  ratified  by  a  major- 
ity of  all  the  votes  cast  at  such  special  election,  to  be  the 
constitution  of  the  state  of  California. 


Art.  XIX,  §  1      CONSTITUTION  OF  1879.  528 

ARTICLE  XIX. 

CHINESE. 

§  1.  Protection  from  alien  paupers,  etc. 

§  2.  Corporations  prohibited  from  hiring  Chinese. 

§  3.  Public  works,  Chinese  not  to  be  employed  on, 

§  4.  Coolieism  prohibited — Eemoval  of  Chinese. 

Protection  from  alien  paupers,  etc. 

Section  1.  The  legislature  shall  prescribe  all  neces- 
sary regulations  for  the  protection  of  the  state,  and  the 
counties,  cities,  and  towns  thereof,  from  the  burdens  and 
evils  arising  from  the  presence  of  aliens  who  are  or  may 
become  vagrants,  paupers,  mendicants,  criminals,  or  in- 
valids afflicted  with  contagious  or  infectious  diseases, 
and  from  aliens  otherwise  dangerous  or  detrimental  to 
the  well-being  or  peace  of  the  state,  and  to  impose  con- 
ditions upon  which  such  persons  may  reside  in  the  state, 
and  to  provide  the  means  and  mode  of  their  removal 
from  the  state,  upon  failure  or  refusal  to  comply  with 
such  conditions;  provided,  that  nothing  contained  in  this 
section  shall  be  construed  to  impair  or  limit  the  power 
of  the  legislature  to  pass  such  police  laws  or  other  ref- 
lations as  it  may  deem  necessary. 

POLICE  REGULATIONS.— A  state  has  the  power  to  exclude 
from  its  limits  paupers,  vagabonds,  and  criminals,  or  sick, 
diseased,  infirm,  and  disabled  persons,  who  are  liable  to  become 
a  public  charge,  or  to  admit  them  only  on  such  terms  as  will 


529  CONSTITUTION  OF  1879.      Art.  XIX,  §  2 

prevent  the  state  from  being  burdened  with  their  support. 
(State  V.  Steamship  Constitution,  42  Cal.  578,  3  0  Am.  Eep.  303.) 

The  power  to  exclude  from  the  limits  of  a  state  persons  not 
paupers,  etc.,  is  a  regulation  of  commerce,  and  cannot  be  exer- 
cised by  the  state.  (State  v.  Steamship  Constitution,  42  Cal. 
578,  10  Am.  Eep.  303.) 

An  act  giving  the  horticultural  commissioners  power  to  abate 
a  nuisance  caused  by  insect  pests  in  orchards,  etc.,  is  authorized 
by  this  section.  (Los  Angeles  Co.  v.  Spencer,  126  Cal.  670, 
77  Am.  St.  Eep.  217,  59  Pac.  202;  Eiverside  Co.  v.  Butcher,  133 
Cal.  324,  65  Pac.  745.) 

An  act  requiring  all  children  attending  the  public  schools 
to  be  vaccinated  is  authorized  by  this  section.  (Abeel  v.  Clark, 
84  Cal.  226,  24  Pac.  383.) 

An  act  levying  upon  each  person  of  the  Mongolian  race  a 
monthly  license  tax  of  two  dollars  and  fifty  cents  for  working 
the  mines,  or  for  prosecuting  any  business,  is  in  violation  of  the 
commerce  clause  of  the  United  States  constitution.  (Lin  Sing 
V.  Washburn,  20  Cal.  534.) 

An  act  forbidding  the  landing  of  lewd  or  debauched  women 
within  the  state  is  valid.     (Ex  parte  Ah  Fook,  49  Cal.  402.) 

An  act  requiring  all  fruit  shipped  to  be  labeled  with  the  local- 
ity in  which  it  is  grown  is  not  a  valid  exercise  of  the  power 
given  by  this  section.  (Ex  parte  Hayden,  147  Cal.  649,  109  Am. 
St.  Eep.  183,  82  Pac.  315.) 

Corporations  prohibited  from  hiring  Chinese. 

Sec.  2.  No  corporation  now  existing  or  hereafter 
formed  under  the  laws  of  this  state  shall,  after  the 
adoption  of  this  constitution,  employ,  directly  or  indi- 
rectly, in  any  capacity,  any  Chinese  or  Mongolian. 
The  legislature  shall  pass  such  laws  as  may  be  necessary 
to  enforce  this  provision. 

CHINESE  LABOR.— This  provision  of  the  constitufion  is  in 
conflict  with  the  treaty  between  tiie  United  States  and  China, 
Constitution — 34 


Art.  XIX,  §§3,  4    CONSTITUTION  OF  1879.  530 

and  is  void.  (In  re  Parrott,  1  Fed.  481,  6  Saw.  349.  See,  also, 
Baker  v.  City  of  Portland,  5  Saw.  566,  Fed.  Cas.  No.  777,  3  Pac. 
C.  L.  J.  4G9;  Chapman  v.  Toy  Long,  4  Saw.  28,  Fed.  Cas.  No. 
2610,  1  Morr.  Min.  Eep.  497;  Ex  parte  Ah  Cue,  101  Cal.  197,  35 
Pac.  556.) 

Public  works,  Chinese  not  to  be  employed  on. 

Sec.  3.  No  Chinese  shall  be  employed  on  any  state, 
county,  municipal,  or  other  public  work,  except  in  pun- 
ishment for  crime. 

CHINESE  EMPLOYMENT.— As  to  the  validity  of  this  pro- 
vision, see  Baker  v.  City  of  Portland,  5  Saw.  566,  Fed.  Cas.  No. 
777,  3  Pac.  C.  L.  J.  472. 

Coolieism  prohibited — Removal  of  Chinese. 

Sec.  4.  The  presence  of  foreigners  ineligible  to  be- 
come citizens  of  the  United  States  is  declared  to  be  dan- 
gerous to  the  well-being  of  the  state,  and  the  legislature 
shall  discourage  their  immigration  by  all  the  means 
within  its  power.  Asiatic  coolieism  is  a  form  of  human 
slavery,  and  is  forever  prohibited  in  this  state,  and  all 
contracts  for  coolie  labor  shall  be  void.  All  companies  or 
corporations,  whether  formed  in  this  country  or  any  for- 
eign country,  for  the  importation  of  such  labor,  shall  be 
subject  to  such  penalties  as  the  legislature  may  prescribe. 
The  legislature  shall  delegate  all  necessary  power  to 
the  incorporated  cities  and  towns  of  this  state  for  the 
removal  of  Chinese  without  the  limits  of  such  cities  and 
towns,  or  for  their  location  within  prescribed  portions 
of  those  limits,  and  it  shall  also  provide  the  necessary 


531  CONSTITUTION  OP  1879.      Art.  XIX,  §  4 

legislation  to  prohibit  the  introduction  into  this  state 
of  Chinese  after  the  adoption  of  this  constitution.  This 
section  shall  Be  enforced  by  appropriate  legislation. 

IMMIGRATION. — As  to  the  validity  of  legislation  excluding 
foreigners,  see  State  v.  Steamsliip  Constitution,  42  Cal.  578,  10 
Am.  Rep.  303;  Lin  Sing  v.  Washburn,  20  Cal.  534;  Ex  parte  Ah 
Fook,  49  Cal.  402;  In  re  Parrott,  1  Fed.  481,  6  Saw.  349;  Baker 
V.  City  of  Portland,  5  Saw.  566,  Fed.  Cas.  No.  777,  3  Pac.  C.  L. 
J.  472;  Ho  Ah  Kow  v.  Nunan,  Fed.  Cas.  No.  6546,  5  Saw.  552,  3 
Pac.  C.  L.  J.  413. 


Art.  XX,  §  1        CONSTITUTION  OP  1879.  532 


ARTICLE  XX. 

MISCELLANEOUS  SUBJECTS. 

§     1.  Scat  of  government. 

§     2.  Dueling,  disabilities  arising  from. 

§     3.  Oath  of  office. 

§     4,  Election  and  appointment  of  officers  and  commissionerB. 

§     5.  Fiscal  year. 

§     6.  Suits  against  state. 

§     7.  Marriage  contracts,  validity  of. 

§     8.  Separate  property  of  husband  and  wife. 

§     9.  Perpetuities  not  allowed. 

§   10.  Disqualification  for  office  by  giving  or  taking  bribe. 

§   11.  Exclusion  from  office,  jury,  and  right  of  suffrage  of  cer- 
tain persons — Protection  of  right  of  suffrage. 

§  12.  Eesidence,  when  absence  not  to  affect. 

§   13.  Plurality  vote  to  elect. 

§  14.  State  board  of  health. 

§  15.  Mechanic's  lien. 

§  16.  Term  of  office,  duration  of. 

§  17.  Eight  hours  a  legal  day's  labor. 

§  18.  Sex  not  a  disqualification  for  business. 

§  19.  Payment  of  expenses  of  convention. 

§  20.  Election  of  officers — Term,  when  commences. 

Seat  of  government. 

Section  1.  The  city  of  Sacramento  is  hereby  de- 
clared to  be  the  seat  of  government  of  this  state,  and 
shall  so  remain  until  changed  by  law;  but  no  law 
changing  the  seat  of  government  shall  be  valid  or  bind- 
ing unless  the  same  be  approved  and  ratified  by  a  ma- 


533  CONSTITUTION  OP  1879.        Art.  XX,  §  2 

jority  of  the  qualified  electors  of  the  state  voting  there- 
for at  a  general  state  election,  under  such  regulations 
and  provisions  as  the  legislature,  by  a  two-thirds  vote 
of  each  house,  may  provide,  submitting  the  question 
of  change  to  the  people. 

SEAT  OF  GOVERNMENT.— This  section  is  subject  to  amend- 
ment in  the  same  manner  as  any  other  part  of  the  constitution. 
(Livermore  v.  Waite,  102  Cal.  113,  36  Pac.  424,  25  L.  E.  A.  312.) 

The  proposed  constitutional  amendment  of  1893  to  change  the 
seat  of  government  to  San  Jose  was  held  invalid  and  ineffective, 
its  operation  being  limited  upon  the  uncertain  conditions  of  the 
donation  to  the  state  of  not  less  than  ten  acres  of  land,  and  one 
million  dollars  in  money,  and  the  approval  by  the  governor, 
secretary  of  state,  and  attorney  general  of  the  site  so  donated. 
(Livermore  v.  Waite,  102  Cal.  113,  36  Pac.  424,  25  L.  E.  A.  312.) 

An  act  making  Vallejo  the  permanent  seat  of  government, 
and  providing  that  one  Vallejo  should  give  a  bond  for  the  per- 
formance of  the  proposition  which  he  had  submitted  to  the  legis- 
lature, and  should  provide  a  statehouse,  and  failing  to  do  so, 
"then  this  act  to  be  void,"  is  constitutional,  and  operated  to 
change  the  seat  of  government  and  cannot  be  defeated  by  the 
breach  of  the  condition.     (People  v.  Bigler,  5  Cal.  23.) 

Dueling,  disabilities  arising  from. 

Sec.  2.  Any  citizen  of  this  state  who  shall,  after  the 
adoption  of  this  constitution,  fight  a  duel  with  deadly 
weapons,  or  send  or  accept  a  challenge  to  fight  a  duel 
with  deadly  weapons,  either  within  this  state  or  out  of 
it,  or  who  shall  act  as  second,  or  knowingly  aid  or  assist 
in  any  manner  those  thus  offending,  shall  not  be  allowed 
to  hold  any  office  of  profit,  or  to  enjoy  the  right  of  suf- 
frage under  this  constitution. 


Art.  XX,  §  3        CONSTITUTION  OP  1879.  534 

Oath  of  office. 

Sec.  3.  Members  of  the  legislature,  and  all  officers, 
executive  and  judicial,  except  such  inferior  officers  as 
may  be  by  law  exempted,  shall,  before  they  enter  upon 
the  duties  of  their  respective  offices,  take  and  subscribe 
the  following  oath  or  affirmation : 

"I  do  solemnly  swear  (or  affirm,  as  the  case  may  be), 
that  I  will  support  the  constitution  of  the  United  States 
and  the  constitution  of  the  state  of  California,  and  that 
I  will  faithfully  discharge  the  duties  of  the  office  of 
,  according  to  the  best  of  my  ability." 

And  no  other  oath,  declaration,  or  test  shall  be  re- 
quired as  a  qualification  for  any  office  or  public  trust. 

OATH  OF  OFFICE.— The  terms  "office"  and  "public  trust" 
have  relation  to  such  duties  and  responsibilities  as  are  of  a  pub- 
lic nature.     (Ex  parte  Yale,  24  Cal.  241,  85  Am.  Dec.  62.) 

An  attorney  at  law  does  not  hold  an  "office"  or  "public  trust" 
within  the  meaning  of  this  section.  (Ex  parte  Yale,  24  Cal.  241, 
85  Am.  Dec.  62;  Cohen  v.  Wright,  22  Cal.  293.) 

This  provision  does  not  prohibit  the  legislature  from  prescrib- 
ing an  oath  to  such  officers  in  a  different  form  of  words  from 
that  herein  used,  if  the  meaning,  object,  and  intent  of  the  sec- 
tion be  not  violated.      (Cohen  v.  Wright,  22  Cal.  293.) 

It  is  competent  for  the  legislature  to  make  the  taking  of  the 
oath  of  office  a  condition  subsequent.  (Ball  v.  Kenfield,  55  Cal. 
320.) 

The  legislature  can  neither  increase  nor  diminish  the  qualifica- 
tions which  the  constitution  has  prescribed  for  eligibility  to  any 
offices  created  by  that  instrument,  but  may  prescribe  any  quali- 
fications for  offices  created  by  the  legislature.  (Sheehan  v. 
Scott,  145  Cal.  684,  79  Pac.  350.) 

It  is  to  be  persumed  that  officers  will  qualify  within  a  rea- 
Fonable  time  consistent  with  their  duties.  (Brodie  v.  Campbell, 
17  Cal.  11.) 


535  CONSTITUTION  OF  1879.        Art.  XX,  §  4 

The  provisions  of  the  Purity  of  Election  Law  requiring  a 
successful  candidate  for  office  to  support  his  statement  of  elec- 
tion expenses  by  his  oath  as  a  prerequisite  to  his  right  to  take 
office,  is  in  violation  of  this  section,  as  they  impose  an  oath  or 
test  substantially  different  from  that  made  exclusive  by  the  con- 
struction.    (Bradley  v.  Clark,  133  Cal.  196,  65  Pac.  395.) 

The  requirement  of  the  primary  election  law  that  a  candi- 
date file  with  his  nomination  papers  an  affidavit  as  to  his  party 
affiliations  is  not  in  violation  of  the  section  of  the  constitution, 
which  applies  only  to  persons  who  have  been  elected  or  ap- 
pointed to  office;  it  is  a  reasonable  test,  authorized  by  section 
21/2  of  article  2.  (Socialist  Party  v.  Uhl,  155  Cal.  776,  103  Pac. 
181.) 

Election    and    appointment    of    officers    and    commis- 
sioners. 

Sec.  4.  All  officers  or  commissioners  whose  election 
or  appointment  is  not  provided  for  by  this  constitution, 
and  all  officers  or  commissioners  whose  offices  or  duties 
may  hereafter  be  created  by  law,  shall  be  elected  by  the 
people,  or  appointed,  as  the  legislature  may  direct. 

ELECTION  AND  APPOINTMENT  OF  OFFICERS.— This  sec- 
tion does  not  prevent  the  legislature  itself  from  electing  an 
officer  created  by  it.     (People  v.  Langdon,  8  Cal.  1.) 

The  words  "elect"  and  "appoint"  are  used  synonymously  in 
the  constitution.     (People  v.  Langdon,  8  Cal.  1.) 

This  section  does  not  authorize  the  legislature  to  exercise  the 
power  of  appointment  to  office,  if  that  is  essentially  an  executive 
function,  under  section  1,  article  3,  of  the  constitution.  (E'eople 
V.  Freeman,  80  Cal.  233,  13  .\m.  St.  Eep.  122,  22  Pac.  173.) 

The  constitution  does  not  prohibit  the  legislature  from  con- 
ferring on  a  voluntary  association  of  persons,  who  are  not  citi- 
zens of  the  United  States,  nor  electors  of  the  city,  the  power  to 
elect  a  person  to  fill  an  office  cieated  by  the  legislature.  (In  re 
Bulger,  45  Cal.  553.) 

The  provision  of  the  act  regulating  the  practice  of  medicine 
and  surgery,  that  the  board  of  examiners  shall  be  appointed  by 


Art.  XX,  §§  5,  6    CONSTITUTION  OF  1879.  53G 

certain    medical    societies   is    authorized   by   this   section.     (Ex 
parte  Gerino,  143  Cal.  412,  77  Pac.  166,  66  L.  E.  A.  249.) 

Under  this  section  officers  may  be  appointed  by  the  legislature 
itself,  or  the  duty  of  appointment  may  be  delegated  and  imposed 
upon  some  other  person  or  body.  (Ex  parte  Gerino,  143  Cal. 
412,  77  Pac.  166,  66  L.  E.  A.  249.) 

Fiscal  year. 

Sec.  5.  The  fiscal  year  shall  commence  on  the  first 
day  of  July. 

FISCAL  YEAR.— The  fiscal  year  ends  with  the  thirtieth  day 
of  June.     (Rollins  v.  Wright,  93  Cal.  395,  29  Pac.  58.) 

An  act  legalizing  assessments  for  taxes  for  the  fiscal  year  end- 
ing on  the  first  day  of  March  is  not  void  because  the  constitu- 
tion provides  that  the  fiscal  year  shall  commence  on  the  first 
day  of  July,  but  the  word  "fiscal"  in  the  act  may  be  treated  as 
surplusage.     (People  v.  Todd,  23  Cal.  181.) 

Suits  against  state. 

Sec.  6.  Suits  may  be  brought  against  the  state  in 
such  manner  and  in  such  courts  as  shall  be  directed  by 
law. 

SUITS  AGAINST  THE  STATE.— Where  an  action  is  properly 
brought  against  the  state  the  attorney  general  has  power  to  ap- 
pear, although  the  state  has  not  been  regularly  summoned. 
(California  &  Northern  Ey.  v.  State,  1  Cal.  App.  142,  81  Pac. 
971.) 

Even  prior  to  the  amendment  to  section  1240  of  the  Code  of 
Civil  Procedure,  a  suit  might  be  maintained  against  the  state  to 
condemn  lands  belonging  to  it.  (California  &  Northern  Ey.  v. 
State,  1  Cal.  App.  142,  81  Pac.  971.) 

This  provision  does  not  extend  to  suits  against  municipalities. 
(Goldtree  v,  San  Diego,  8  Cal.  App.  505,  97  Pac.  216.) 


537  CONSTITUTION  OF  1879.     Art.  XX,  §§7,8 

Marriage  contracts,  validity  of. 

Sec.  7.  No  contract  of  marriage,  if  otherwise  duly 
made,  shall  be  invalidated  for  want  of  conformity  to 
the  requirements  of  any  religious  sect. 

Separate  property  of  husband  and  wife. 

Sec.  8.  All  property,  real  and  personal,  owned  by 
either  husband  or  wife  before  marriage,  and  that  ac- 
quired by  either  of  them  afterward  by  gift,  devise,  or 
descent,  shall  be  their  separate  property. 

SEPARATE  PROPERTY.— The  word  "separate"  neither  en- 
larges nor  limits  her  right  to  the  property  mentioned,  but  merely 
distinguishes  it  from  her  common  property.  (Dow  v.  Gould  & 
Curry  etc.  Min.  Co.,  31  Cal.  629.) 

The  last  clause  of  the  corresponding  section  of  the  old  con- 
stitution refers  only  to  the  disabilities  under  which  the  wife 
labored  at  common  law  by  reason  of  coverture.  (Dow  v.  Gould 
&  Curry  etc.  Min.  Co.,  31  Cal.  629.) 

In  the  absence  of  any  agreement  the  husband  acquires  no 
interest  in  the  separate  property  of  the  wife  by  bestowing  labor 
upon  it.      (Lewis  v.  Johns,  24  Cal.  98.) 

All  property  which  can  be  shown  by  satisfactory  testimony  to 
belong  to  the  separate  estate  of  the  wife,  whether  real,  personal, 
or  mixed,  and  all  the  rents,  issues  and  profits  thereof,  are  sacred 
to  the  use  and  enjoyment  of  the  wife,  and  cannot  be  held  to  an- 
swer for  the  debts  of  the  husband.  (Lewis  v.  Johns,  24  Cal. 
98.) 

The  term  "separate  property"  is  used  in  its  common-law  sense, 
and  by  that  law  "separate  property"  means  an  estate  held,  both 
in  its  use  and  title,  for  the  exclusive  benefit  of  the  wife.  To 
give  the  husband  or  his  creditors  any  claim  upon  the  separate 
property  of  the  wife  is  unconstitutional.  (George  v.  Ransom,  15 
Cal.  322,  76  Am.  Dec.  490.) 

An  act  requiring  a  deed  conveying  the  separate  property  of 
the  wife  to  be  signed  by  the  husband  is  not  unconstitutional. 
(Dow  v.  Gould  &  Curry  etc.  Min.  Co.,  31  Cal.  629.) 


Art.  XX,  §§  9-11    CONSTITUTION  OF  1879.  538 

As  to  whether  property  devised  in  pursuance  of  a  contract  is 
separate  property,  see  Bell  v.  Wyman,  147  Cal.  514,  82  Pac.  39. 

Perpetuities  not  allowed. 

Sec.  9.  No  perpetuities  shall  be  allowed  except  for 
eleemosynary  purposes. 

PERPETUITIES. — Trusts  for  perpetual  charitable  uses  are 
not  in  conflict  with  this  section.  (Estate  of  Hinckley,  58  Cal. 
457.) 

The  term  "eleemosynary"  is  not  confined  to  almsgiving  or 
charity  shown  exclusively  to  the  poor  but  includes  all  charitable 
purposes,  including  schools,  as  well  as  asylums,  hospitals,  and 
religious  institutions.  (People  v.  Cogswell,  113  Cal.  129,  45  Pac. 
270,  35  L.  R.  A.  269.) 

A  trust  for  the  perpetual  care  of  a  burial  plot  is  in  violation 
of  this  provision.  (Estate  of  Gay,  138  Cal.  552,  94  Am.  St. 
Rep.  70,  71  Pac.  707.) 

"Eleemosynary"  as  used  in  the  constitution  is  synonymous 
with  charitable,  as  the  latter  word  is  used  and  understood  in 
treatises  and  decisions  upon  the  subject  of  trusts.  (Estate  of 
Sutro,  155  Cal.  727,  102  Pac.  920.) 

After  the  will  has  been  merged  in  the  decree  of  distribution, 
it  is  too  late  to  urge  that  it  creates  an  illegal  perpetuity. 
(Kaufifman  v.  Poster,  3  Cal.  App.  741,  86  Pac.  1108.) 

Disqualification  for  office  by  giving  or  taking  bribe. 

Sec.  10.  Every  person  shall  be  disqualified  from 
holding  any  office  of  profit  in  this  state  who  shall  have 
been  convicted  of  having  given  or  offered  a  bribe  to 
procure  his  election  or  appointment. 

Exclusion  from  office,  jury,  and  right  of  suffrage  of 
certain  persons — Protection  of  right  of  suffrage. 
Sec.  11.     Laws  shall  be  made  to  exclude  from  office, 
serving  on  juries,  and  from  the  right  of  suffrage,  per- 


539  CONSTITUTION  OF  1879.    Art.XX,§§  12,13 

sous  convicted  of  bribery,  perjury,  forgery,  malfeasance 
in  office,  or  other  high  crimes.  The  privilege  of  free 
suffrage  shall  be  supported  by  laws  regulating  elections 
and  prohibiting,  under  adequate  penalties,  all  undue 
influence  thereon  from  power,  bribery,  tumult,  or  other 
improper  practice. 

BRIBERY. — Where  a  candidate  for  office  publicly  pledges 
himself  before  the  election  to  perform  the  duties  of  the  office  for 
less  than  the  compensation  established  by  law,  and  by  reason 
thereof  a  sufficient  number  of  voters  were  induced  to  vote  for 
him  to  secure  him  the  election,  his  election  is  void.  (State  v 
Collier,  3  Pac.  C.  L.  J.  394;  State  v.  Purdy,  36  Wis.  213,  17  Am 
Eep.  485.) 

A  vote  given  for  a  public  officer,  in  consideration  of  his  prom 
ise,  in  case  he  should  be  elected,  to  donate  a  sum  of  money 
or  other  valuable  thing  to  a  third  party,  is  void.  (Tucker  v 
Aiken,  7  N.  H.  113;  Alvord  v.  Collin,  20  Pick.  418.) 

See,  further,  State  v.  Dustin,  5  Or.  375,  20  Am.  Eep.  746 
Commonwealth  v.  Shaver,  3  Watts  &  S.  338. 

SUFFRAGE. — This  section  does  not  authorize  the  passage  of 
a  law  curtailing  the  privilege  of  free  suffrage.  (Spier  v.  Baker, 
120  Cal.  370,  52  Pac.  659,  41  L.  R.  A.  196.) 

Residence,  when  absence  not  to  affect. 

Sec.  12.  Absence  from  this  state,  on  business  of  the 
state  or  of  the  United  States,  shall  not  affect  the  ques- 
tion of  residence  of  any  person. 

Plurality  vote  to  elect. 

Sec.  13.  A  plurality  of  the  votes  given  at  any  elec- 
tion shall  constitute  a  choice  where  not  otherwise  di- 
rected in  this  constitution,  provided  that  it  shall  be 
competent  in  all  charters  of  cities,  counties  or  cities  and 


Art.  XX,  §§14, 15    CONSTITUTION  OF  1879.  540 

counties  framed  under  the  authority  of  this  constitution 
to  provide  the  manner  in  which  their  respective  elective 
officers  may  be  elected  and  to  prescribe  a  higher  pro- 
portion of  the  vote  therefor,  and  provided  also,  that 
it  shall  be  competent  for  the  legislature  by  general  law 
to  provide  the  manner  in  which  officers  of  municipalities 
organized  or  incorporated  under  general  laws  may  be 
elected  and  to  prescribe  a  higher  proportion  of  the  vote 
therefor.     (Amendment  approved  October  10,  1911.) 

[ORIGINAL  SECTION.] 
Sec.  13.     A  plurality  of  the  votes  given  at  any  election  shall 
constitute  a  choice,  where  not  otherwise  directed  in  this  consti- 
tution. 

PLURALITY  OF  VOTES. — If  the  person  receiving  the  highest 
number  of  votes  is  ineligible,  the  person  receiving  the  next 
liighest  number  is  not  elected,  but  the  election  must  be  annulled. 
(Campbell  v.  Free,  7  Cal.  App.  151,  93  Pac.  1060.) 

In  order  to  be  elected  a  person  must  receive  a  plurality  of 
the  votes  cast.  (Campbell  v.  Free,  7  Cal.  App.  151,  93  Pac. 
1060.) 

State  board  of  health. 

Sec.  14.  The  legislature  shall  provide,  by  law,  for 
the  maintenance  and  efficiency  of  a  state  board  of 
health. 

Mechanic's  lien. 

Sec.  15.  Mechanics,  materialmen,  artisans,  and  la- 
borers of  every  class,  shall  have  a  lien  upon  the  prop- 
erty upon  which  they  have  bestowed  labor  or  furnished 


541  CONSTITUTION  OF  1879.      Art.  XX,  §  15 

material  for  the  value  of  such  labor  done  and  material 
furnished ;  and  the  legislature  shall  provide,  by  law,  for 
the  speedy  and  efficient  enforcement  of  such  liens, 

MECHANICS'  LIENS.— This  section  is  not  self-executing 
and  is  inoperative,  except  as  supplemented  by  legislation.  (Spin- 
ney V.  Griffith,  98  Cal.  149,  32  Pac.  974.) 

The  constitution  by  this  section  has  left  to  the  legislature 
the  duty  of  providing  for  the  enforcement  of  these  liens.  (Morse 
V,  De  Ardo,  107  Cal.  622,  40  Pac.  I(il8.) 

This  section  is  self-executing.  (Miltimore  v.  Nofziger  Bros. 
L.  Co.,  150  Cal.  790,  90  Pac.  114.) 

The  mechanic's  lien  is  created  by  the  constitution.  (Gold- 
tree  V.  San  Diego,  8  Cal.  App.  50.5,  97  Pac.  216.) 

The  mechanic's  lien  law  should  be  construed  so  as  to  be  in 
consonance  with  the  constitutional  provision  granting  the  lien. 
(Los  Angeles  P.  B.  Co.  v.  Higgins,  8  Cal.  App.  514,  97  Pac.  414.) 

This  section  places  mechanics,  materialmen,  artisans,  and 
laborers  in  one.  class,  and  the  legislature  cannot  impair  their 
rights  by  giving  one  a  lien  in  preference  to  the  other.  (Milti- 
more V.  Nofziger  Bros.  L.  Co.,  150  Cal.  790,  90  Pac.  114.) 

The  legislature  has  power  to  provide  that  the  ovmer  shall  be 
liable  to  materialmen  and  laborers,  unless  he  executes  his  con- 
tract in  a  certain  form,  and  files  it  in  the  recorder's  office. 
(Kellogg  V.  Howes,  81  Cal.  170,  22  Pac.  509,  6  L.  R.  A.  588.) 

This  section  does  not  give  a  lien  upon  public  buildings  or 
property.  (Mayrhofer  v.  Board  of  Education,  89  Cal.  110,  23 
Am.  St.  Rep.  451,  26  Pac.  646;  Glodtree  v.  San  Diego,  8  Cal. 
App.  505,  97  Pac.  216.) 

A  meclianic's  lien  can  be  enforced  against  a  fund  in  the  city 
treasury  to  pay  for  the  public  work  in  connection  with  which 
the  lien  is  claimed.  (Goldtree  v.  San  Diego,  8  Cal.  App.  505, 
97  Pac.  216.) 

Sections  1183  to  1199  of  the  Code  of  Civil  Procedure,  not  being 
inconsistent  with  this  section,  remriiiicd  in  i'orce  after  its  adop- 
tion.    (Germania  Bldg.  etc.  Assn.  v.  Wagner,  61  Cal.  349.) 

The  provision  of  this  section  respecting  mechanics'  liens  is 
subordinate  to  the  Declaration  of  Rights.  (Stimson  M.  Co.  v. 
Braun,  136  Cal.  122,  89  Am.  St.  Rep.  116,  68  Pac.  481,  57  L.  E. 
A.  726.) 


Art.  XX,  §  16      CONSTITUTION  OF  1879.  542 

The  provision  of  section  1203  of  the  Code  of  Civil  Procedure 
requiring  contractors  for  the  erection  of  buildings  to  secure  their 
contracts  by  1)011(18  is  not  authorized  by  this  section.  (Shaugh- 
nessy  v.  American  Surety  Co.,  138  Cal.  543,  69  Pac.  250,  71  Pac. 
701.) 

This  section  only  provides  for  a  lien  where  the  materials  have 
actually  been  used  upon  the  property  upon  which  the  lien  is 
claimed.     (Bennett  v.  Beadly,  142  Cal.  239,  75  Pac.  843.) 

This  section  authorizes  the  legislature  to  allow  counsel  fees 
in  actions  to  foreclose  mechanics'  liens.  (Peckham  v.  Fox,  1 
Cal.  App.  307,  82  Pac.  91.) 

The  right  of  materialmen,  artisans,  and  laborers  to  have  a  lien 
for  the  full  value  of  labor  or  materials  furnished  is  solemnly 
guaranteed  by  the  constitution,  and  legislation  must  be  sub- 
ordinate to  and  in  consonance  with  this  provision.  (Hampton 
V.  Christensen,  148  Cal.  729,  84  Pac.  200.) 

This  section  did  not  repeal  existing  statutes  providing  for  the 
enforcement  of  liens  of  mechanics.  (Peckham  v.  Fox,  1  Cal. 
App.  307,  82  Pac.  91.) 

The  lien  law  is  not  unconstitutional  because  it  takes  property 
without  due  process  of  law,  or  abridges  the  right  to  contract  in 
respect  to  one's  property.  (Stimson  Mill  Co.  v.  Nolan,  5  Cal. 
App.  754,  91  Pac.  262.) 

A  subcontractor  is  entitled  to  a  lien  for  labor  and  materials 
although  he  did  not  personally  perform  the  labor.  (Barrett- 
Hicks  Co.  V.  Glas,  14  Cal.  App.  289,  111  Pac.  760.) 

To  construe  section  1188  of  the  Code  of  Civil  Procedure  as  re- 
quiring a  separate  stitement  of  the  amount  due  on  each  build- 
ing, when  it  is  impossible  to  do  so,  would  render  nugatory  the 
lien  provided  for  by  the  constitution.  (Southern  Cal.  L.  Co.  v. 
Peters,  3  Cal.  App.  478,  86  Pac.  816.) 

The  lien  provided  for  by  this  section  attaches  to  a  building 
resting  upon  land  in  which  the  person  causing  the  building  to  be 
erected  has  no  interest.  (Linck  v.  Meikeljohn,  2  Cal.  App.  506, 
84  Pac.  309.) 

Term  of  office,  duration  of. 

Sec.  16.  When  the  term  of  any  officer  or  commis- 
sioner is  not  provided  for  in  this  constitution,  the  term 


543  CONSTITUTION  OF  1879.      Art.  XX,  §  16 

of  such  officer  or  commissioner  may  be  declared  by  law; 
and,  if  not  so  declared,  such  officer  or  commissioner  shall 
hold  his  position  as  such  officer  or  commissioner  during 
the  pleasure  of  the  authority  making  the  appointment; 
but  in  no  case  shall  such  term  exceed  four  years;  pro- 
vided, however,  that  in  the  case  of  any  officer  or  em- 
ployee of  any  municipality  governed  under  a  legally 
adopted  charter,  the  provisions  of  such  charter  with  ref- 
erence to  the  tenure  of  office  or  the  dismissal  from  office 
of  any  such  officer  or  employee  shall  control ;  and  pro- 
vided, further,  that  the  term  of  office  of  any  person 
heretofore  or  hereafter  appointed  to  hold  office  or  em- 
ployment during  good  behavior  under  civil  service  laws 
of  the  state  or  of  any  political  division  thereof  shall  not 
be  limited  by  this  section.  (Amendment  approved  Oc- 
tober 10,  1911.) 

[AMENDMENT  OF  1906.] 
Sec.  16.  When  the  term  of  any  officer  or  commissioner  is  not 
provided  for  in  this  constitution,  the  term  of  such  officer  or 
commissioner  may  be  declared  by  law;  and,  if  not  so  declared, 
such  officer  or  commissioner  shall  hold  his  position  as  such 
officer  or  commissioner  during  the  pleasure  of  the  authority 
making  the  appointment;  but  in  no  case  shall  such  terra  exceed 
four  years;  provided,  however,  that  in  the  case  of  any  officer  or 
employee  of  any  municipality  governed  under  a  legally  adopted 
charter,  the  provisions  of  such  charter  with  reference  to  the 
tenure  of  office  or  the  dismissal  from  office  of  any  such  officer 
or  employee  shall  control.  (Amendment  adopted  November  6, 
1906.) 


Art.  XX,  §  16      CONSTITUTION  OF  1879.  544: 

[ORIGINAL  SECTION.] 
Sec.  16.  When  the  term  of  any  officer  or  commissioner  is  not 
provided  for  in  this  constitution,  the  term  of  such  officer  or  com- 
missioner may  be  declared  by  law;  and,  if  not  so  declared,  such 
officer  or  commissioner  shall  hold  his  position  as  such  officer  or 
commissioner  during  the  pleasure  of  the  authority  making  the 
appointment;  but  in  no  case  shall  such  term  exceed  four  years. 

TERM  OF  OFFICE. — This  section  being  a  re-enactment  of 
section  7,  article  11,  of  the  former  constitution,  must  be  con- 
strued in  the  same  manner.  (People  v.  Edwards,  93  Cal.  153,  28 
Pac.  831.) 

The  word  "duration"  signifies  extent,  limit,  or  time.  (People 
V.  Hill,  7  Cal.  97.) 

A  hospital  physician  of  the  county  is  not  a  public  officer. 
(People  V.  Wheeler,  136  Cal.  652,  69  Pac.  435.) 

This  section  only  applies  to  officers  whose  term  is  "not  pro- 
vided for  in  the  constitution"  and  does  not  apply  to  superior 
judges.     (People  v.  Campbell,  138  Cal.  11,  70  Pac.  918.) 

"Good  behavior"  is  not  a  term  within  the  meaning  of  this 
section.     (Somers  v.  State,  58  S.  D.  584.) 

When  an  ineligible  person  receives  the  highest  number  of 
votes,  there  is  a  vacancy  which  the  board  of  supervisors  has 
power  to  fill.  (Campbell  v.  Board  of  Supervisors,  7  Cal.  App. 
155,  93  Pac.  1061.) 

The  legislature  may  direct  the  time  and  mode  of  the  election 
of  an  officer  whose  term  is  prescribed  by  the  constitution,  but 
cannot  change  the  tenure.     (People  v.  Burbank,  12  Cal.  378.) 

Where  an  officer  is  appointed  for  two  years,  he  does  not  hold 
by  the  tenure  of  the  approbation  of  the  appointing  power. 
(People  V.  Eeid,  6  Cal.  288.) 

An  officer  appointed  to  hold  for  one  year,  or  until  his  successor 
should  be  appointed  and  qualified,  has  no  fixed  term,  and  he  may 
be  removed  at  any  time  by  the  appointing  power.  (Higgins  v. 
Cole,  100  Cal.  260,  34  Pac.  678.) 

This  section  refers  to  officers  of  statutory  creation  as  well  as 
to  officers  mentioned  in  the  constitution  itself.  (People  v.  Perry. 
79  Cal.  105,  21  Pac.  423.) 

The  commissioners  to  manage  the  Yosemite  Valley  are  officers 
of  the  state  within  the  meaning  of  this  section,  and  their  terms 


545  CONSTITUTION  OF  1879.      Art.  XX.  §  16 

expired   four  years   after   their   appointment.     (People   v.    Ash- 
burner,  55  Cal.  517.) 

The  commissioners  of  the  funded  debt  of  San  Francisco  were 
not  oflScers.     (People  v.  Middleton,  28  Cal.  603.) 

The  members  of  the  board  of  health  of  San  Francisco  are 
officers  within  the  meaning  of  this  section,  and  a  statute  fixing 
their  term  of  office  at  five  years  is  unconstitutional  and  leaves 
the  duration  of  the  term  unfixed  and  subject  to  the  pleasure  of 
the  governor.     (People  v.  Perry,  79  Cal.  105,  21  Pac.  423.) 

The  health  inspector  of  San  Francisco  is  an  officer.  (Patton 
V.  Board  of  Health,  127  Cal.  388,  78  Am.  St.  Eep.  66,  59  Pac. 
702.) 

As  to  who  are  officers  generally,  see  Vaughn  v.  English,  8  Cal. 
39;  Crawford  v.  Dunbar,  52  Cal.  36;  Farrell  v.  Sacramento,  85 
Cal.  408,  24  Pac.  868;  State  v.  Brandt,  41  Iowa,  593;  Somers  v. 
State,  5  S.  D.  584,  59  N.  W.  962;  United  States  v.  Hartwell,  6 
Wall.  385,  18  L.  Ed.  830;  note,  72  Am.  Dec.  179-189;  Wright  v. 
Laugenour,  55  Cal.  280;  Phelps  v.  Winchomb,  3  Bulst.  77. 

The  legislature  cannot  provide  that  officers  appointed  by  a 
board  shall  not  be  removed  without  just  cause,  where  the  dura- 
tion of  their  terms  is  not  fixed.  (People  v.  Hill,  7  Cal.  97; 
Smith  V.  Brown,  59  Cal.  672;  People  v.  Shear,  15  Pac.  92;  Pat- 
ton  V.  Board  of  Health,  127  Cal.  388,  78  Am.  St.  Rep.  66,  59  Pac. 
702;  Sponogle  v.  Curnow,  136  Cal.  580,  69  Pac.  255.) 

Policemen  appointed  without  any  definite  term  hold  during 
the  pleasure  of  the  appointing  power,  and  may  be  removed  with- 
out charges,  notice  or  trial.  (Farrell  v.  Police  Commissioners, 
1  Cal.  App.  5,  81  Pac.  674.) 

As  to  whether  or  not  the  Civil  Service  provisions  of  the  San 
Francisco  charter  are  in  violation  of  this  provision,  see  Cahen 
v.  Wells,  132  Cal.  447,  64  Pac.  699. 

This  section  must  be  conslvued  to  deny  the  right  of  removal 
in  those  cases  where  the  tenure  is  defined  by  law.  (People  v. 
.Tewett,  6  Cal.  291.) 

The  constitution  does  not  prohibit  an  office  created  by  the 
legislature  from  continuing  over  four  years,  but  merely  limits 
the  incumbent's  term  to  four  years.  (People  v.  Stratton,  28  Cal. 
382.) 

Constitution — 85 


Art.  XX,  §  17      CONSTITUTION  OF  1879.  546 

This  section  does  not  forbid  a  holding  over  until  a  successor 
has  been  chosen  and  qualified.  (People  v.  Edwards,  93  Cal.  153, 
28  Pac.  831.) 

Where  the  term  of  an  officer  is  not  fixed  by  the  constitution 
or  by  law,  and  the  authority  of  the  power  making  the  appoint- 
ment has  ceased,  there  is  no  vacancy  in  the  office,  but  the  officer 
holds  over.  (People  v.  Hammond,  66  Cal.  654,  6  Pac.  741;  People 
V.  Gunst,  110  Cal.  447,  42  Pac.  963.) 

When  the  charter  provides  a  tribunal  with  power  to  remove 
municipal  officers,  such  method  of  procedure  is  exclusive  and 
supersedes  the  provision  of  the  Penal  Code  giving  jurisdiction 
to  the  superior  court.  (Dinan  v.  Superior  Court,  6  Cal.  App.  217, 
91  Pac.  806.) 

The  amendment  of  1906  was  intended  to  make  it  clear  that  the 
provisions  of  a  freeholders'  charter  should  control  in  the  matter 
of  the  dismissal  from  office  of  any  officer  or  employee  of  the 
municipality.  (Craig  v.  Superior  Court,  157  Cal.  481,  108  Pac. 
310.)  ' 

Eight  hours  a  legal  day's  labor. 

Sec.  17.  The  time  of  service  of  all  laborers  or  work- 
men or  mechanics  employed  upon  any  public  works  of 
the  state  of  California,  or  of  any  county,  city  and  county, 
city,  town,  district,  township,  or  any  other  political 
subdivision  thereof,  whether  said  work  is  done  by  con- 
tract or  otherwise,  shall  be  limited  and  restricted  to 
eight  hours  in  any  one  calendar  day,  except  in  cases 
of  extraordinary  emergency  caused  by  fire,  flood,  or 
danger  to  life  and  property,  or  except  to  work  upon 
public,  military,  or  naval  works  or  defenses  in  time  of 
war,  and  the  legislature  shall  provide  by  law  that  a 
stipulation  to  this  effect  shall  be  incorporated  in  all  con- 


Art.  XX,  Sec.  171.     Insert  at  Page  547. 

Sec.  17-2^.  The  legislature  may,  by  appropriate  legis- 
lation, provide  for  the  establishment  of  a  minimum 
wage  for  women  and  minors  and  may  provide  for  the 
comfort,  health,  safety  and  general  welfare  of  any 
and  all  employees.  No  provision  of  this  constitution 
shall  be  construed  as  a  limitation  upon  the  authority 
of  the  legislature  to  confer  upon  any  commission  now 
or  hereafter  created,  such  power  and  authority  as  the 
legislature  may  deem  requisite  to  carry  out  the  pro- 
visions of  this  section.  (New  section  added  by  amend- 
ment adopted  November  3,  191-4.) 


547  CONSTITUTION  OF  1879.      Art.  XX,  §  18 

tracts  for  "public  work  and  prescribe  proper  penalties 
for  the  speedy  and  efficient  enforcement  of  said  law. 
(Amendment  adopted  November  4,  1902.) 

[OEIGINAL  SECTION.] 
Sec.  17.     Eight  hours  shall  constitute  a  legal  clay's  work  on 
all  public  work. 

Sex  not  a  disqualification  for  business. 

Sec.  18.  No  person  shall,  on  account  of  sex,  be  dis- 
qualified from  entering  upon  or  pursuing  any  lawful 
business,  vocation,  or  profession. 

SEX. — This  section  is  self-executing,  and  needs  no  legislation 
to  put  it  in  effect,  and  imposes  a  restraint  on  every  law-making 
power  of  the  state,  whether  an  act  of  the  legislature  or  an  ordi- 
nance of  a  municipal  corporation.  (Matter  of  Maguire,  57  Cal. 
604,  40  Am.  Eep.  125.) 

The  word  "qualified,"  as  used  in  this  section,  is  presumed  to 
be  used  in  its  natural  and  ordinary  sense.  (Matter  of  Maguire, 
57  Cal.  604,  40  Am.  Rep.  125;  Weill  v.  Kenfield,  54  Cal.  111.) 

An  ordinance  prohibiting  the  employment  of  females  in  dance- 
halls,  etc.,  is  in  violation  of  this  section.  (Matter  of  Maguire, 
57  Cal.  604,  40  Am.  Rep.  125.  But  see  Ex  parte  Felchlin,  96 
Cal.  360,  31  Am.  St.  Rep.  223,  31  Pac.  224.) 

A  city  ordinance  which  fixes  the  license  for  the  carrying  on  of 
a  saloon  where  females  are  employed,  and  where  intoxicating 
liquors  are  sold  in  less  quantities  than  one  quart,  at  a  higher 
rate  than  a  license  for  conducting  a  saloon  where  females  are 
not  employed,  is  valid.  (Ex  parte  Felchlin,  96  Cal.  3G0,  31  Am. 
St.  Rep.  223,  31  Pac.  224.  Opinion  of  McKinstry,  J.,  in  Matter 
of  Maguire,  57  Cal.  614,  approved.) 

An  ordinance  providing  that  no  license  shall  be  issued  to  per- 
sons engaged  in  the  sale  of  liquors  in  dance-halls,  or  dance- 
cellars,  or  in  places  where  musical,  theatrical,  or  other  public 


Art.  XX,  §§19,  20    constitution  op  1879.  543 

exhibitions  are  given,  and  where  females  attend  ffs  waitresses, 
is  valid.  (Ex  parte  Hayes,  98  Cal.  555,  33  Pac.  337,  20  L.  E.  A. 
701.) 

Payment  of  expenses  of  convention. 

Sec.  19.  Nothing  in  this  constitution  shall  prevent 
the  legislature  from  providing,  by  law,  for  the  payment 
of  the  expenses  of  the  convention  framing  this  consti- 
tution, including  the  per  diem  of  the  delegates  for  the 
full  term  thereof. 

Election  of  officers — Term,  when  commences. 

Sec.  20.  Elections  of  the  officers  provided  for  by  this 
constitution,  except  at  the  election  in  the  year  eighteen 
hundred  and  seventy-nine,  shall  be  held  on  the  even- 
numbered  years  next  before  the  expiration  of  their 
respective  terms.  The  terms  of  such  officers  shall  com- 
mence on  the  first  Monday  after  the  first  day  of  Jan- 
uary next  following  their  election. 

TIME  OF  ELECTIONS.— This  section  controls  all  other  pro- 
visions of  the  constitution  as  to  when  the  term  of  office  of 
officers  elected  under  it  commences.  (Merced  Bank  v.  Rosen- 
thal, 99  Cal.  39,  31  Pac.  849,  33  Pac.  732.) 

The  officers  mentioned  in  this  section  are  not  the  county,  town- 
ship and  municipal  officers  who  are  distinctly  mentioned  in  sec- 
tion 5,  article  11,  and  the  duration  of  whose  terras  the  legislature 
is  expressly  directed  to  fix.     (In  re  Stuart,  53  Cal.  745.) 

The  officers  mentioned  in  this  section  are  the  same  as  those 
mentioned  in  section  10,  article  22.  (Barton  v.  Kalloch,  56  Cal. 
95.) 


549  CONSTITUTION  OF  1879.       Art.  XX,  §  21 

Under  this  section  justices  of  the  peace  are  to  be  elected  in 
the  even-numbered  years.  (People  v.  Eaiisom,  58  Cal.  55S; 
Bishop  V.  Oakland,  58  Cal.  572;  .Jenks  v.  Oakland,  58  Cal.  576; 
Coggins  V.  Sacramento,  59  Cal.  599.) 

The  words  "from  and  after"  must  be  construed  to  mean  "on 
and  after"  and  the  controller's  term  includes  the  first  Monday. 
(People  V.  Nye,  9  Cal.  App.  148,  98  Pac.  241.) 

Laws  to  remain  in  force. 

Sec.  21.  The  legislature  may  by  appropriate  legislation 
create  and  enforce  a  liability  on  the  part  of  all  employ- 
ers to  compensate  their  employees  for  any  injury  in- 
curred by  the  said  employees  in  the  course  of  their  em- 
ployment irrespective  of  the  fault  of  either  party.  The 
legislature  may  provide  for  the  settlement  of  any  dis- 
putes arising  under  the  legislation  contemplated  by  this 
section,  by  arbitration,  or  by  an  industrial  accident 
board,  by  the  courts,  or  by  either,  any  or  all  of  these 
agencies,  anything  in  this  constitution  to  the  contrary 
notwithstanding.  (Amendment  approved  October  10, 
1911.) 


Art.  XXI,  §  1      CONSTITUTION  OP  1879.  550 


ARTICLE  XXI. 

BOUNDARY. 

Section  1.  The  boundary  of  the  state  of  California 
shall  be  as  follows:  Commencing  at  the  point  of  inter- 
section of  the  forty-second  degree  of  north  latitude 
with  the  one  hundred  and  twentieth  degree  of  longitude 
west  from  Greenwich,  and  running  south  on  the  line 
of  said  one  hundred  and  twentieth  degree  of  west  longi- 
tude until  it  intersects  the  thirty-ninth  degree  of  north 
latitude;  thence  running  in  a  straight  line,  in  a  south- 
easterly direction,  to  the  River  Colorado,  at  a  point 
where  it  intersects  the  thirty-fifth  degree  of  north  lati- 
tude ;  thence  down  the  middle  of  the  channel  of  said 
river  to  the  boundary  line  between  the  United  States 
and  Mexico,  as  established  by  the  treaty  of  May  thir- 
tieth, one  thousand  eight  hundred  and  forty-eight; 
thence  running  west  and  along  said  boundary  line  to 
the  Pacific  Ocean,  and  extending  therein  three  English 
miles ;  thence  running  in  a  northwesterly  direction  and 
following  the  direction  of  the  Pacific  Coast  to  the  forty- 
second  degree  of  north  latitude;  thence  on  the  line  of 
said  forty-second  degree  of  north  latitude  to  the  place 
of  beginning.  Also,  including  all  the  islands,  harbors, 
and  bays  along  and  adjacent  to  the  coast. 


551  CONSTITUTION  OF  1879.    Art.  XXII,  §  1 

ARTICLE  XXII. 

SCHEDULE. 

§  1.  Laws  to  remain  in  force. 

§  2.  Recognizances,  obligations,  etc.,  unaffected. 

§  3.  Courts,  save  justices'  and  police  courts,  abolished — Trans- 
fer of  records,  books,  etc. 

§  4.  State  printing. 

§  5.  Ballots  to  be  printed. 

§  6.  Registers,  poll-books,  etc.,  to  be  furnished. 

§  7.  Who  entitled  to  vote  for  constitution. 

§  8.  Canvass  of  returns  of  vote. 

§  9.  Computing  returns  of  vote. 

§  10.  Terms  of  officers  first  elected. 

§  11.  Laws  applicable  to  judicial  system. 

§  12.  Constitution,  when  to  take  effect. 

That  no  inconvenience  may  arise  from  the  alterations 
and  amendments  in  the  constitution  of  this  state,  and  to 
carry  the  same  into  complete  effect,  it  is  hereby  or- 
dained and  declared : 

Laws  to  remain  in  force. 

Section  1.  That  all  laws  in  force  at  the  adoption  of 
this  constitution,  not  inconsistent  therewith,  shall  re- 
main in  full  force  and  effect  until  altered  or  repealed 
by  the  legislature;  and  all  rights,  actions,  prosecutions, 
claims,  and  contracts  of  the  state,  counties,  individuals, 
or  bodies  corporate,  not  inconsistent  therewith,  shall 
continue  to  be  as  valid  as  if  this  constitution  had  not 


Art.  XXII,  §  1     CONSTITUTION  OF  1879.  552 

been  adopted.  The  provisions  of  all  laws  which  are  in- 
consistent with  this  constitution  shall  cease  upon  the 
adoption  thereof,  except  that  all  laws  which  are  incon- 
sistent with  such  provisions  of  this  constitution  as  re- 
quire legislation  to  enforce  them  shall  remain  in  full 
force  until  the  first  day  of  July,  eighteen  hundred  and 
eighty,  unless  sooner  altered  or  repealed  by  the  legis- 
lature. 

LAWS  CONTINUED  IN  FORCE.— The  constitution  of  1879 
(lid  not,  proprio  vigore,  repeal  or  displace  all  the  statutes  of  the 
state  theretofore  in  force,  but  only  such  as  were  inconsistent 
with  those  provisions  of  that  constitution  which  do  not  require 
legislation  to  put  them  in  force.     (In  re  Stuart,  53  Gal.  745.) 

Section  25,  article  4,  being  merely  prospective,  special  laws 
passed  before  the  adoption  of  the  constitution  are  not  super- 
seded.    (Smith  V.  McDermott,  93  Gal.  421,  29  Pac.  34.) 

The  provisions  of  the  constitution  giving  the  superior  court 
jurisdiction  of  special  proceedings,  not  requiring  legislation  to 
enforce  it,  the  superior  court  has  jurisdiction,  as  the  successor 
of  the  district  court,  to  entertain  proceedings  under  sections  312 
and  315  of  the  Civil  Code,  although  those  sections  mention  the 
district  court.  (Wickersham  v.  Brittan,  93  Gal.  34,  28  Pac.  792, 
29  Pac.  51,  15  L.  E.  A.  106.) 

A  statute  giving  the  district  court  jurisdiction  of  a  special 
proceeding  is  not  inconsistent  with  the  constitution,  and  did  not 
cease  upon  its  adoption.  (Wickersham  v.  Brittan,  93  Gal.  34, 
28  Pac.  792,  29  Pac.  51,  15  L.  R.  A.  106.  Fraser  v.  Alexander, 
75  Gal.  147,  16  Pac.  757,  overruled.) 

Section  13,  article  11,  being  only  prospective,  an  act  passed 
prior  to  the  constitution  which  is  inconsistent  with  it  is  not 
superseded.  (Commissioners  v.  Trustees,  71  Gal.  310,  12  Pac. 
224.) 

Sections  1183  to  1199  of  the  Code  of  Civil  Procedure,  not  being 
inconsistent  with  section  15,  article  20,  of  the  constitution,  re- 
mained in  force  after  its  adoption.  (Germania  BIdg.  etc.  Assn. 
V.  Wagner,  61  Gal.  349.) 


553  CONSTITUTION  OF  1879.        Art.  XII,  §  1 

Any  general  law  in  conflict  with  the  Civil  Code  and  passed 
subsequent  to  its  adoption  supersedes  the  provisions  thereof,  and 
the  constitution  does  not  require  such  a  law  to  be  passed  as  an 
amendment  to  the  Civil  Code  in  order  to  affect  any  rights  or 
powers  therein  given  to  corporations.  (People  v.  Bank  of  San 
Luis  Obispo,  15-1  Cal.  194,  97  Pae.  306.) 

Section  1033  of  the  Penal  Code  is  not  inconsistent  with  sec- 
tion 9,  article  1  of  the  constitution,  and  was  continued  in  force. 
(Older  V.  Superior  Court,  157  Cal.  770,  109  Pae.  478.) 

The  law  providing  for  the  election  of  a  clerk  of  the  supreme 
court  was  not  superseded  by  the  constitution.  (Gross  v.  Ken- 
field,  57  Cal.  626.) 

Section  1,  article  13,  which  provides  that  "all  property  in  the 
state,  not  exempt  under  the  laws  of  the  United  States,  shall  be 
taxed  in  proportion  to  its  value,  to  be  ascertained  as  provided 
by  law,"  is  self-executing,  and  requires  the  assessor  to  ascer- 
tain such  value  in  the  manner  now  provided  by  law.  (Hyatt 
V.  Allen,  54  Cal.  353;  McDonald  v.  Patterson,  54  Cal.  245.) 

The  Consolidation  Act  of  the  city  and  county  of  San  Francisco 
remained  in  force  notwithstanding  section  7,  article  11,  requir- 
ing two  boards  of  supervisors,  since  that  section  required  legis- 
lation to  put  it  in  effect.     (Desmond  v.  Dunn,  55  Cal.  242.) 

The  effect  of  the  new  constitution  in  repealing  the  provision 
of  the  act  of  1878,  declaring  how  and  by  whom  two  of  the  fire 
commissioners  should  be  appointed,  did  not  necessarily  destroy 
the  two  offices,  nor  affect  the  validity  of  the  act,  but  the  incum- 
bents continued  to  hold  after  the  appointing  power  was  abol- 
ished.    (People  V.  Newman,  96  Cal.  605,  31  Pae.  564.) 

Where,  at  the  adoption  of  the  constitution,  the  Political  Code 
fixed  the  salary  of  county  superintendent  of  schools,  and  in  1878 
the  legislature  passed  a  special  law  on  the  subject  to  go  into 
effect  on  the  first  Monday  of  March,  1880,  the  provision  of  the 
Political  Code  remained  in  force  and  the  special  act  never  went 
into  effect.  (Peachy  v.  Supervisors,  59  Cal.  548;  Whiting  v. 
Haggard,  60  Cal.  513.) 

Where  a  special  act  was  passed  prior  to  the  new  constitution, 
but  it  was  provided  that  it  should  not  affect  the  present  incum- 
bent, whose  term  did  not  expire  until  after  the  constitution 
went  into  effect,  the  act  was  not  superseded  by  the  constitution. 
(Los  Angeles  v.  Lamb,  61  Cul.  196.  Peachy  v.  Supervisors,  59 
Cal.  548,  distinguished.) 


Art.  XXII,  §  2     CONSTITUTION  OF  1879.  554 

LAWS  SUPERSEDED.— The  provision  of  the  charter  of  San 
Francisco  for  the  making  a  contract  for  street  work  before  an 
assessment  had  been  levied  and  collected,  being  inconsistent 
with  section  19,  article  11,  of  the  constitution,  was  superseded 
by  it.  (Thomason  v.  Euggles,  69  Cal  465,  11  Pac.  20;  Oakland 
Pav.  Co.  V.  Hilton,  69  Cal.  479,  11  Pac.  3;  McDonald  v,  Patter- 
son, 54  Cal.  245;  Donahue  v.  Graham,  61  Cal.  276.) 

The  act  of  1858  providing  for  the  fixing  of  water  rates  by  a 
commissioner,  being  inconsistent  with  section  1,  article  14,  of  the 
constitution,  was  superseded  by  that  section.  (Spring  Valley 
W,  W.  V.  San  Francisco,  61  Cal.    3.) 

The  provision  of  the  act  of  1858,  requiring  water  companies 
to  furnish  water  free  of  charge  to  cities  and  counties,  was  abro- 
gated by  this  section,  because  in  conflict  with  section  19,  article 
11,  and  section  1,  article  14.  (Spring  Valley  W.  W.  v,  San  Fran- 
cisco, 61  Cal.  18.) 

The  provision  of  the  Political  Code  imposing  a  license  upon 
the  business  of  selling  goods,  etc.,  at  a  fixed  place  of  business, 
being  in  conflict  with  section  12,  article  11,  of  the  constitution, 
became  inoperative  upon  the  adoption  of  the  constitution. 
(People  v.  Martin,  60  Cal.  153.) 

Held,  that  an  ordinance  prohibiting  the  employment  of  females 
in  dance-halls,  etc.,  being  in  conflict  with  section  18,  article  20, 
ceased  upon  the  adoption  of  the  constitution.  (Matter  of  Ma- 
guire,  57  Cal.  604,  40  Am.  Eep.  125.) 

The  act  of  1875,  which  provided  that  the  text-books  in  use  in 
1873,  1874,  1875,  should  be  continued  in  use  until  otherwise  pro- 
vided by  statute,  was  superseded  by  section  7,  article  9,  which 
provides  that  the  local  boards  of  education  should  adopt  text- 
books within  their  respective  jurisdictions.  (People  v  Board  of 
Education,  55  Cal.  331.) 

An  act  passed  before  the  adoption  of  the  coustitution,  but 
which  was  not  to  go  into  effect  until  a  later  date,  never  went 
into  effect.     (Speegle  v.  Joy,  60  Cal.  278.) 

Recognizances,  obligations,  etc.,  unaffected. 

Sec.  2.  That  all  recognizances,  obligations,  and  all 
other  instruments  entered  into  or  executed  before  the 
adoption  of  this  constitution,  to  this  state,  or  to  any  sub- 


555  CONSTITUTION  OF  1879.     Art.  XXII,  §  3 

division  thereof,  or  any  municipality  therein,  and  all 
fines,  taxes,  penalties,  and  forfeitures  due  or  owing  to 
this  state,  or  any  subdivision  or  municipality  thereof, 
and  all  writs,  prosecutions,  actions,  and  causes  of  ac- 
tions, except  as  herein  otherwise  provided,  shall  con- 
tinue and  remain  unaffected  by  the  adoption  of  this 
constitution.  All  indictments .  or  informations  which 
shall  have  been  found,  or  may  hereafter  be  found,  for 
any  crime  or  offense  committed  before  this  constitution 
takes  effect,  may  be  proceeded  upon  as  if  no  change  had 
taken  place,  except  as  otherwise  provided  in  this  consti- 
tution. 

Courts,  save  justices'  and  police  courts,  abolished^ 
Transfer  of  records,  books,  etc. 

Sec.  3.  All  courts  now  existing,  save  justices'  and 
police  courts,  are  hereby  abolished;  and  all  records, 
books,  papers,  and  proceedings  from  such  courts,  as  are 
abolished  by  this  constitution,  shall  be  transferred  on 
the  first  day  of  January,  eighteen  hundred  and  eighty, 
to  the  courts  provided  for  in  this  constitution ;  and  the 
courts  to  which  the  same  are  thus  transferred  shall  have 
the  same  power  and  jurisdiction  over  them  as  if  they 
had  been  in  the  first  instance  commenced,  filed,  or 
lodged  therein. 

COURTS. — When  a  trial  was  commenced  and  the  testimony- 
taken  by  a  judge  before  his  term  expired  under  the  old  con- 
stitution, and  he  was  re-elected  under  the  new,  he  may,  as  a 


Art.  XXII,  §  4    CONSTITUTION  OP  1879.  556 

judge  under  the  new,  decide  the  case  on  the  evidence  then  taken, 
without  a  resubmission.     (Seale  v.  Ford,  29  Cal.  104.) 

The  amendments  to  the  constitution  in  18G2  did  not  ipso  facto 
supersede  the  existing  courts,  but  such  courts  continued  in  exist- 
ence until  the  new  system  should  be  in  a  condition  to  exercise 
its  functions.     (In  re  Oliverez,  21  Cal.  415.) 

The  justices  of  the  peace  of  the  city  and  county  of  San  Fran- 
cisco, provided  for  by  the  act  of  1866,  were  continued  in  force 
by  this  section,  and  are  not  affected  by  the  provisions  of  the 
County  Government  Act.  (Kahn  v.  Sutro,  114  Cal.  316,  46 
Pac.  87,  33  L.  R.  A.  620.  But  see  People  v.  Cobb,  133  Cal.  74, 
65  Pac.  325.)  ' 

The  superior  court  of  San  Francisco  is  the  successor  of  the 
municipal  criminal  court  of  that  city  and  county.  (Ex  parte 
Williams,  87  Cal.  78,  24  Pac.  602,  25  Pac.  248.) 

An  action  to  abate  a  nuisance  pending  in  the  district  court, 
being  held  to  be  an  action  in  equity  under  the  former  constitu- 
tion, is  not  affected  by  the  adoption  of  the  new  constitution. 
(Learned  v.  Castle,  67  Cal.  41,  7  Pac.  341.) 

The  superior  court  of  San  Francisco  acquired  jurisdiction  of 
an  action  pending  in  the  district  court  of  San  Francisco  to  re- 
cover real  estate  in  Sonoma  county.  (Gurnee  v.  Superior  Court, 
58  Cal.  88;  San  Francisco  Sav.  Union  v.  Abbott,  59  Cal.  400.) 

It  would  seem  that  it  was  intended  that  the  superior  judge 
should  succeed  to  the  duty  of  the  county  judge  in  respect  to 
the  drawing  of  jurors.     (People  v.  Gallagher,  55  Cal.  462.) 

The  superior  court  is  the  successor  of  the  county  court,  and 
may  issue  all  necessary  writs  to  the  execution  of  iits  judgment. 
(Ex  parte  Toland,  54  Cal.  344.) 

The  superior  court  is  the  successor  of  the  district  court,  and 
may  carry  into  execution  a  judgment  of  death  rendered  by  the 
district  court.     (People  v.  Colby,  54  Cal.  184.) 

State  printing. 

Sec.  4.  The  superintendent  of  printing  of  the  state 
of  California  shall,  at  least  thirty  days  before  the  first 
Wednesday  in  May,  A.  D.  eighteen  hundred  and  sev- 
enty-nine, cause  to  be  printed  at  the  state  printing  office 


557  CONSTITUTION  OP  1879.    Art.  XXII,  §  5 

in  pamphlet  form,  simply  stitched,  as  many  copies  of 
this  constitution  as  there  are  registered  voters  in  this 
state,  and  mail  one  copy  thereof  to  the  postoffice  ad- 
dress of  each  registered  voter;  provided,  any  copies  not 
called  for  ten  days  after  reaching  their  delivery  office, 
shall  be  subject  to  general  distribution  by  the  several 
postmasters  of  the  state.  The  governor  shall  issue  his 
proclamation,  giving  notice  of  the  election  for  the 
adoption  or  rejection  of  this  constitution,  at  least  thirty 
days  before  the  said  first  "Wednesday  of  May,  eighteen 
hundred  and  seventy-nine,  and  the  boards  of  super- 
visors of  the  several  counties  shall  cause  said  proclama- 
tion to  be  made  public  in  their  respective  counties,  and 
general  notice  of  said  election  to  be  given  at  least  fif- 
teen days  next  before  said  election. 

Ballots  to  be  printed. 

See.  5.  The  superintendent  of  printing  of  the  state 
of  California  shall,  at  least  twenty  days  before  said 
election,  cause  to  be  printed  and  delivered  to  the  clerk 
of  each  county  in  this  state  five  times  the  number  of 
properly  prepared  ballots  for  said  election  that  there 
are  voters  in  said  respective  counties,  with  the  words 
printed  thereon:  "For  the  new  constitution."  lie 
shall  likewise  cause  to  be  so  printed  and  delivered  to 
said  clerks  five  times  the  number  of  properly  prepared 
ballots  for  said  election  that  there  are  voters  in  said 
respective    counties,  with  the  words    printed    thereon: 


Art.XXII,  §§  6,7    CONSTITUTION  OP  1879.  558 

"Against  the  new  constitution."  The  secretary  of 
state  is  hereby  authorized  and  required  to  furnish  the 
superintendent  of  state  printing  a  sufficient  quantity 
of  legal  ballot  paper,  now  on  hand,  to  carry  out  the 
provisions  of  this  section. 

Registers,  poll-books,  etc.,  to  be  furnished. 

Sec.  6.  The  clerks  of  the  several  counties  in  the 
state  shall,  at  least  five  days  before  said  election,  cause 
to  be  delivered  to  the  inspectors  of  elections,  at  each 
election  precinct  or  polling-place  in  their  respective 
counties,  suitable  registers,  poll-books,  forms  of  return, 
and  an  equal  number  of  the  aforesaid  ballots,  which 
number,  in  the  aggregate,  must  be  ten  times  greater 
than  the  number  of  voters,  in  the  said  election  precincts 
or  polling-places.  The  returns  of  the  number  of  votes 
cast  at  the  presidential  election  in  the  year  eighteen 
hundred  and  seventy-six  shall  serve  as  a  basis  of  cal- 
culation for  this  and  the  preceding  section;  provided, 
that  the  duties  in  this  and  the  preceding  section  im- 
posed upon  the  clerk  of  the  respective  counties  shall, 
in  the  city  and  county  of  San  Francisco,  be  performed 
by  the  registrar  of  voters  for  said  city  and  county. 

Who  entitled  to  vote  for  constitution. 

Sec.  7.  Every  citizen  of  the  United  States,  entitled 
by  law  to  vote  for  members  of  the  assembly  in  this  state, 


55d  CONSTITUTION  OP  1879.     Art.  XXIi,  §§  8,0 

shall  be  entitled  to  vote  for  the  adoption  or  rejection  of 
this  constitution. 

Canvass  of  returns  of  vote. 

Sec.  8.  The  officera  of  the  several  counties  of  this 
state,  whose  duty  it  is,  under  the  law,  to  receive  and  can- 
vass the  returns  from  the  several  precincts  of  their  re- 
spective counties,  as  well  as  of  the  city  and  county  of  San 
Francisco,  shall  meet  at  the  usual  places  of  meeting  for 
such  purposes  on  the  first  Monday  after  said  election. 
If,  at  the  time  of  meeting,  the  returns  from  each  pre- 
cinct in  the  county  in  which  the  polls  were  opened  have 
been  received,  the  board  must  then  and  there  proceed  to 
canvass  the  returns ;  but  if  all  the  returns  have  not  been 
received,  the  canvass  must  be  postponed  from  time  to 
time  until  all  the  returns  are  received,  or  until  the  sec- 
ond IMonday  after  said  election,  when  they  shall  proceed 
to  make  out  returns  of  the  votes  cast  for  and  against  the 
new  constitution ;  and  the  proceedings  of  said  boards 
shall  be  the  same  as  those  prescribed  for  like  boards  in 
the  case  of  an  election  for  governor.  Upon  the  comple- 
tion of  said  canvass  and  returns,  the  said  board  shall  im- 
mediately certify  the  same,  in  the  usual  form,  to  the 
governor  of  the  state  of  California. 

Computing  returns  of  vote. 

See.  9.  The  governor  of  the  state  of  California  shall, 
as  soon  as  the  returns  of  said  election  shall  be  received 


Art.  XXII,  §  10     CONSTITUTION  OP  1879.  560 

by  him,  or  within  thirty  days  after  said  election,  in  the 
presence  and  with  the  assistance  of  the  controller,  treas- 
urer, and  secretary  of  state,  open  and  compute  all  the 
returns  received  of  votes  cast  for  and  against  the  new 
constitution.  If,  by  such  examination  and  computa- 
tion, it  is  ascertained  that  a  majority  of  the  whole  num- 
ber of  votes  cast  at  such  election  is  in  favor  of  such  new 
constitution,  the  executive  of  this  state  shall,  by  his 
proclamation,  declare  such  new  constitution  to  be  the 
constitution  of  the  state  of  California,  and  that  it  shall 
take  effect  and  be  in  force  on  the  days  hereinafter  speci- 
aed. 

Terms  of  officers  first  elected. 

Sec.  10.  In  order  that  future  elections  in  this  state 
shall  conform  to  the  requirements  of  this  constitution, 
the  terms  of  all  officers  elected  at  the  first  election  under 
the  same  shall  be,  respectively,  one  year  shorter  than  the 
terms  as  fixed  by  law  or  by  this  constitution;  and  the 
successors  of  all  such  officers  shall  be  elected  at  the  last 
election  before  the  expiration  of  the  terms  as  in  this  sec- 
tion provided.  The  first  officers  chosen,  after  the  adop- 
tion of  this  constitution,  shall  be  elected  at  the  time  and 
in  the  manner  now  provided  by  law.  Judicial  officers 
and  the  superintendent  of  public  instruction  shall  be 
elected  at  the  time  and  in  the  manner  that  state  officers 
are  elected. 


561  CONSTITUTION  OF  1879.    Art.  XXII,  §  11 

ELECTIONS. — Suggested  but  not  decided  that  it  mry  have 
been,  and  probably  was,  eonteniplaled  by  the  framers  of  the 
constitution  that,  when  the  le^jislature  should  provide  for  the 
election  of  county,  township,  and  municipal  officers,  it  would  re- 
quire such  election  to  be  held  in  the  e.ven-numbered  years;  but 
whether  the  legislature  must  do  so,  not  decided.  (Barton  v. 
Kalloch,  56  Cal.  95.) 

This  section  refers  only  to  the  officers  mentioned  in  section 
20,  article  20;  that  is,  only  to  officers  who  derive  their  right  to 
hold  office  immediately  from  the  constitution;  and  does  not  refer 
to  mimicipal  or  county  officers.     (Barton  v.  Kalloch,  56  Cal.  95.) 

Justices  of  the  peace  are  judicial  officers  within  the  meaning 
of  this  section,  and  must  be  elected  at  the  general  election. 
(McGrew  v.  Mayor  etc.  of  San  Jose,  55  Cal.  611;  People  v.  Ean- 
som,  58  Cal.  558.) 

A  police  judge,  though  a  judicial  officer,  is  also  a  municipal 
officer,  and  is  not  one  of  those  mentioned  in  this  section. 
(People  V.  Henry,  62  Cal.  557.) 

This  section  does  not  require  that  the  term  of  such  judicial 
officers  as  the  legislature  may  authorize  to  be  elected  shall  be 
uniform  throughout  the  state.  (Kahn  v.  Sutro,  111  Cal,  316,  46 
Pac.  87,  33  L.  E.  A.  620.) 

Laws  applicable  to  judicial  system. 

Sec.  11.  All  laws  relative  to  the  present  judicial 
system  of  the  state  shall  be  applicable  to  the  judicial 
system  created  by  this  constitution  nintil  changed  by 
legislation. 

JUDICIAL  SYSTEM. — The  several  courts  of  the  state  con- 
tinued with  their  jurisdiction,  notwithstanding  the  adoption  of 
the  amendments  of  1862,  until  the  organization  of  the  new 
courts  by  which  they  were  to  be  superseded.  (Gillis  v.  Barnett, 
38  Cal.  393.) 

Section  204  of  the  Code  of  Civil  Procedure  as  to  grand  juries 
was   continued   in   force  by   this   provision   of  the   constitution. 
(People  V.  Durrant,  116  Cal.  179,  48  Pac.  75.) 
Constitution — 36 


Art.  XXII,  §  11     CONSTITUTION  OP  1879.  562 

The  justices  of  the  peace  of  the  city  and  county  of  San  Fran- 
cisco provided  for  by  the  act  of  1806  were  continued  in  force 
by  this  section,  and  are  not  affected  b}'  the  County  Government 
Act.  (Kahn  v.  Sutro,  114  Cal.  316,  46  Pac.  87,  33  L.  E.  A.  620. 
But  see  People  v.  Cobb,  133  Cal.  74,  65  Pac.  325.) 

The  provision  of  the  fee  bill  of  1876,  so  far  as  it  provided  for 
the  fees  to  be  paid  to  the  clerk  of  the  district  court,  was  a  law 
relating  to  the  judicial  system  of  the  state,  and  was  kept  in 
force  by  the  new  constitution,  and  made  applicable  to  the  courts 
organized  thereunder.  (People  v.  Hamilton,  103  Cal.  488,  37 
Pac.  627.) 

This  section  continued  in  force  the  provision  for  the  drawing 
of  iarial  jurors.  (People  v.  Eichards,  1  Cal.  App.  566,  82  Pac. 
691.) 

The  superior  court  has  jurisdiction,  as  the  successor  of  the  dis- 
trict court,  to  entertain  proceedings  under  sections  312  and  315 
of  the  Civil  Code,  although  those  sections  mention  the  district 
court.  (Wickersham  v.  Brittan,  93  Cal.  34,  28  Pac.  792,  29  Pac. 
51,  15  L.  E.  A.  106.) 

The  power  of  appointing  police  commissioners,  vested  in  the 
judges  of  certain  district  courts  by  the  act  of  1878,  was  not  a 
judicial  power,  did  not  pertain  to  the  judicial  system  of  the 
Btate,  and  did  not  devolve  upon  the  judges  of  the  superior  courts. 
(Heinlen  v.  Sullivan,  64  Cal.  378,  1  Pac.  158.) 

Under  this  section,  the  law  giving  the  district  court  power  to 
fix  the  compensation  of  phonographic  reporters  was  continued  in 
force,  and  made  applicable  to  superior  courts.  (Ex  parte  Eeis, 
64  Cal.  233,  30  Pac.  806.) 

Under  this  section,  the  law  regulating  appeals  from  justices' 
courts  to  the  county  courts  applied  to  appeals  to  the  superior 
court.  (California  Fruit  etc.  Co.  v.  Superior  Court,  60  Cal. 
305.) 

The  clerk  of  the  superior  court  succeeding  to  a  district  court 
has  power,  without  a  previous  order  of  the  court,  to  issue  an 
execution  upon  a  judgment  of  the  district  court.  (Dorn  v. 
Howe,  59  Cal.  129.) 

The  statute  providing  for  the  drawing  of  jurors  in  the  pres- 
ence of  the  county  judge,  clerk  and  sheriff  was  not  superseded 
by  the  constitution,  since  the  superior  judge  would  either  sue- 


563  CONSTITUTION  OF  1879.    Art.  XXII,  §  12 

ceed  to  the  duty  of  the  county  judge,  or,  there  being  no  county 
judge,  the  presence  of  the  clerk  and  sheriff  would  be  sufficient. 
(People  V.  Gallagher,  55  Cal.  462.) 

Constitution,  when  to  take  effect. 

Sec.  12.  This  constitution  shall  take  effect  and  be 
in  force  on  and  after  the  fourth  day  of  July,  eighteen 
hundred  and  seventy-nine,  at  twelve  o'clock  meridian, 
so  far  as  the  same  relates  to  the  election  of  all  officers, 
the  commencement  of  their  terms  of  office,  and  the  meet- 
ing of  the  legislature.  In  all  other  respects,  and  for  all 
other  purposes,  this  constitution  shall  take  effect  on  the 
first  day  of  January,  eighteen  hundred  and  eighty,  at 
twelve  o'clock  meridian. 


Art.  XXIII,  §  1    CONSTITUTION  OF  1879.  564 

ARTICLE  XXIII. 

EECALL  OF  OFFICEKS. 

Section  1.  Every  elective  public  officer  of  the  state 
of  California  may  be  removed  from  office  at  any  time  by 
the  electors  entitled  to  vote  for  a  successor  of  such  in- 
cumbent, through  the  procedure  and  in  the  manner 
herein  provided  for,  which  procedure  shall  be  known  as 
the  recall,  and  is  in  addition  to  any  other  method  of 
removal  provided  by  law. 

The  procedure  hereunder  to  effect  the  removal  of  an 
incumbent  of  an  elective  public  office  shall  be  as  fol- 
lows: A  petition  signed  by  electors  entitled  to  vote  for 
a  successor  of  the  incumbent  sought  to  be  removed, 
equal  in  number  to  at  least  twelve  per  cent  of  the  entire 
vote  cast  at  the  last  preceding  election  for  all  candidates 
for  the  office  which  the  incumbent  sought  to  be  removed 
occupies  (provided  that  if  the  officer  sought  to  be  re- 
moved is  a  state  officer  who  is  elected  in  any  political 
subdivision  of  the  state,  said  petition  shall  be  signed  by 
electors  entitled  to  vote  for  a  successor  to  the  incum- 
bent sought  to  be  removed,  equal  in  number  to  at  least 
twenty  per  cent  of  the  entire  vote  cast  at  the  last  pre- 
ceding election  for  all  candidates  for  the  office  which 
the  incumbent  sought  to  be  removed  occupies)  demand- 
ing an  election  of  a  successor  to  the  officer  named  in  said 
petition,  shall  be  addressed  to  the  secretary  of  state  and 
filed  with  the  clerk,  or  registrar  of  voters,  of  the  county 


565  CONSTITUTION  OF  1879.    Art.  XXIII,  §  I 

or  city  and  county  in  which  the  petition  was  circulated ; 
provided  that  if  the  officer  sought  to  be  removed  was 
elected  in  the  state  at  large  such  petition  shall  be  cir- 
culated in  not  less  than  five  counties  of  the  state,  and 
shall  be  signed  in  each  of  such  counties  by  electors  equal 
in  number  to  not  less  than  one  per  cent  of  the  entire 
vote  cast,  in  each  of  said  counties,  at  said  election,  as 
above  estimated.  Such  petition  shall  contain  a  general 
statement  of  the  grounds  on  which  the  removal  is  sought, 
which  statement  is  intended  solely  for  the  information 
of  the  electors,  and  the  sufficiency  of  which  shall  not 
be  open  to  review. 

When  such  petition  is  certified  as  is  herein  provided 
to  the  secretary  of  state,  he  shall  forthwith  submit  the 
said  petition,  together  with  a  certificate  of  its  sufficiency, 
to  the  governor,  who  shall  thereupon  order  and  fix  a 
date  for  holding  the  election,  not  less  than  sixty  days 
nor  more  than  eighty  days  from  the  date  of  such  cer- 
tificate of  the  secretary  of  state. 

The  governor  shall  make  or  cause  to  be  made  pub- 
lication of  notice  for  the  holding  of  such  election,  and 
officers  charged  by  law  with  duties  concerning  elections 
shall  make  all  arrangements  for  such  election  and  the 
same  shall  be  conducted,  returned,  and  the  result  thereof 
declared,  in  all  respects  as  are  other  state  elections.  On 
the  official  ballot  at  such  election  shall  be  printed,  in  not 
more  than  two  hundred  words,  the  reasons  set  forth  in 
the  petition  for  demanding  his  recall.     And  in  not  more 


Art.  XXIII,  §  1     CONSTITUTION  OF  1879.  566 

than  three  hundred  words  there  shall  also  be  printed, 
if  desired  by  him,  the  officer's  justification  of  his  course 
in  office.  Proceedings  for  the  recall  of  any  officer  shall 
be  deemed  to  be  pending  from  the  date  of  the  filing  with 
any  county,  or  city  and  county  clerk,  or  registrar  of 
voters,  of  any  recall  petition  against  such  officer;  and  if 
such  officer  shall  resign  at  any  time  subsequent  to  the 
filing  thereof,  the  recall  election  shall  be  held  notwith- 
standing such  resignation,  and  the  vacancy  caused  by 
such  resignation,  or  from  any  other  cause,  shall  be  filled 
as  provided  by  law,  but  the  persons  appointed  to  fill 
such  vacancy  shall  hold  his  office  only  until  the  person 
elected  at  the  said  recall  election  shall  qualify. 

Any  person  may  be  nominated  for  the  office  which  is 
to  be  filled  at  any  recall  election  by  a  petition  signed  by 
electors,  qualified  to  vote  at  such  recall  election,  equal  in 
number  to  at  least  one  per  cent  of  the  total  number  of 
votes  cast  at  the  last  preceding  election  for  all  candi- 
dates for  the  office  which  the  incumbent  sought  to  be 
removed  occupies.  Each  such  nominating  petition  shall 
be  filed  with  the  secretary  of  state  not  less  than  twenty- 
five  days  before  such  recall  election. 

There  shall  be  printed  on  the  recall  ballot,  as  to  every 
officer  whose  recall  is  to  be  voted  on  thereat,  the  follow- 
ing question:  "Shall  (name  of  person  against  whom  the 
recall  petition  is  filed)  be  recalled  from  the  office  of 
(title  of  the  office)  ?",  following  which  question  shall  be 
the  words    "Yes"   and  "No"  on  separate  lines,  with  a 


5G7  CONSTITUTION  OF  1879.     Art.  XXIII,  §  1 

blank  space  at  the  right  of  each,  in  which  the  voter  shall 
indicate,  by  stamping  a  cross  (X) ,  his  vote  for  or  against 
such  recall.  On  such  ballots,  under  each  such  question, 
there  shall  also  be  printed  the  names  of  those  persons 
who  have  been  nominated  as  candidates  to  succeed  the 
person  recalled,  in  case  he  shall  be  removed  from  office  by 
said  recall  election ;  but  no  vote  cast  shall  be  counted  for 
any  candidate  for  said  office  unless  the  voter  also  voted 
on  said  question  of  the  recall  of  the  person  sought  to  be 
recalled  from  said  office.  The  name  of  the  person 
against  whom  the  petition  is  filed  shall  not  appear  on  the 
ballot  as  a  candidate  for  the  office.  If  a  majority  of 
those  voting  on  said  question  of  the  recall  of  any  incum- 
bent from  office  shall  vote  "No,"  said  incumbent  shall 
continue  in  said  office.  If  a  majority  shall  vote  "Yes," 
said  incumbent  shall  thereupon  be  deemed  removed 
from  such  office,  upon  the  qualification  of  his  successor. 
The  canvassers  shall  canvass  all  votes  for  candidates  for 
said  office  and  declare  the  result  in  like  manner  as  in  a 
regular  election.  If  the  vote  at  any  such  recall  election 
shall  recall  the  officer,  then  the  candidate  who  has  re- 
ceived the  highest  number  of  votes  for  the  office  shall  be 
thereby  declared  elected  for  the  remainder  of  the  term. 
In  case  the  person  who  received  the  highest  number  of 
votes  shall  fail  to  qualify  within  ten  days  after  receiv- 
ing the  certificate  of  election,  the  office  shall  be  deemed 
vacant  and  shall  be  filled  according  to  law. 


Art.  XXIII,  §  1    CONSTITUTION  OF  1879.  568 

Any  recall  petition  may  be  presented  in  sections,  but 
each  section  shall  contain  a  full  and  accurate  copy  of  the 
title  and  text  of  the  petition.  Each  signer  shall  add  to 
his  signature  his  place  of  residence,  giving  the  street  and 
number,  if  such  exist.  His  election  precinct  shall  also 
appear  on  the  paper  after  his  name.  The  number  of 
signatures  appended  to  each  section  shall  be  at  the 
pleasure  of  the  person  soliciting  signatures  to  the  same. 
Any  qualified  elector  of  the  state  shall  be  competent  to 
solicit  such  signatures  within  the  county,  or  city  and 
county,  of  which  he  is  an  elector.  Each  section  of  the 
petition  shall  bear  the  name  of  the  county,  or  city  and 
cnunty  in  which  it  is  circulated,  and  only  qualified  elec- 
tors of  such  county  or  city  and  county  shall  be  competent 
to  sign  such  section.  Each  section  shall  have  attached 
thereto  the  affidavit  of  the  person  soliciting  signatures  to 
the  same  stating  his  qualifications  and  that  all  the  signa- 
tures to  the  attached  section  were  made  in  his  presence 
and  that  to  the  best  of  his  knowledge  and  belief  each 
signature  to  the  section  is  the  genuine  signature  of  the 
person  whose  name  it  purports  to  be ;  and  no  other  affi- 
davit thereto  shall  be  required.  The  affidavit  of  any 
person  soliciting  signatures  hereunder  shall  be  verified 
free  of  charge  by  any  officer  authorized  to  administer  an 
oath.  Such  petition  so  verified  shall  be  prima  facie  evi- 
dence that  the  signatures  thereto  appended  are  genuine 
and  that  the  persons  signing  the  same  are  qualified  elec- 
tors.    Unless  and  until  it  is  otherwise  proven  upon  offi- 


569  CONSTITUTION  OP  1879.     Art.  XXIII,  §  1 

cial  investigation,  it  shall  be  presumed  that  the  petition 
presented  contains  the  signatures  of  the  requisite  num- 
ber of  electors.  Each  section  of  the  petition  shall  be 
filed  with  the  clerk,  or  registrar  of  voters,  of  the  county 
or  city  and  county  in  which  it  was  circulated;  but  all 
such  sections  circulated  in  any  county  or  city  and  county 
shall  be  filed  at  the  same  time.  Within  twenty  days 
after  the  date  of  the  filing  of  such  petition,  the  clerk,  or 
registrar  of  voters,  shall  finally  determine  from  the 
records  of  registration  what  number  of  qualified  electors 
have  signed  the  same ;  and,  if  necessary,  the  board  of 
supervisors  shall  allow  such  clerk  or  registrar  additional 
assistants  for  the  purpose  of  examining  such  petition 
and  provide  for  their  compensation.  The  said  clerk  or 
registrar,  upon  the  completion  of  such  examination,  shall 
forthwith  attach  to  such  petition  his  certificate,  properly 
dated,  showing  the  result  of  such  examination,  and  sub- 
mit said  petition,  except  as  to  the  signatures  appended 
thereto,  to  the  secretary  of  state  and  file  a  copy  of  said 
certificate  in  his  office.  Within  forty  days  from  the 
transmission  of  the  said  petition  and  certificate  by  the 
clerk  or  registrar  of  voters  to  the  secretary  of  state,  a 
supplemental  petition,  identical  with  the  original  as  to 
the  body  of  the  petition  but  containing  supplemental 
names,  may  be  filed  with  the  clerk  or  registrar  of  voters, 
as  aforesaid.  The  clerk  or  registrar  of  voters  shall 
within  ten  days  after  the  filing  of  such  supplemental 
petition  make  like  examination  thereof  as  of  the  original 


Art.  XXIII,  §  1    CONSTITUTION  OP  1879.  570 

petition,  and  upon  the  conclusion  of  such  examination 
shall  forthwith  attach  to  such  petition  his  certificate, 
properly  dated,  showing  the  result  of  such  examination, 
and  shall  forthwith  transmit  such  supplemental  petition, 
except  as  to  the  signatures  thereon,  together  with  his 
said  certificate,  to  the  secretary  of  state. 

When  the  secretary  of  state  shall  have  received  from 
one  or  more  county  clerks,  or  registrars  of  voters,  a  peti- 
tion certified  as  herein  provided  to  have  been  signed  by 
the  requisite  number  of  qualified  electors,  he  shall  forth- 
with transmit  to  the  county  clerk  or  registrar  of  voters 
of  every  county  or  city  and  county  in  the  state  a  certifi- 
cate showing  such  fact;  and  such  clerk  or  registrar  of 
voters  shall  thereupon  file  said  certificate  for  record  in 
his  office. 

A  petition  shall  be  deemed  to  be  filed  with  the  secre- 
tary of  state  upon  the  date  of  the  receipt  by  him  of  a 
certificate  or  certificates  showing  the  said  petition  to  be 
signed  by  the  requisite  number  of  electors  of  the  state. 

No  recall  petition  shall  be  circulated  or  filed  against 
any  officer  until  he  has  actually  held  his  office  for  at  least 
six  months ;  save  and  except  it  may  be  filed  against  any 
member  of  the  state  legislature  at  any  time  after  five 
days  from  the  convening  and  organizing  of  the  legisla- 
ture after  his  election. 

If  at  any  recall  election  the  incumbent  whose  removal 
is  sought  is  not  recalled,  he  shall  be  repaid  from  the  state 
treasury  any  amount  legally  expended   by   him   as   ex- 


571  CONSTITUTION  OF  1879.     Art.  XXIII,  §  1 

penses  of  such  election,  and  the  legislature  shall  provide 
appropriation  for  such,  purpose,  and  no  proceedings  for 
another  recall  election  of  such  incumbent  shall  be  initi- 
ated within  six  months  after  such  election. 

If  the  governor  is  sought  to  be  removed  under  the  pro- 
visions of  this  article,  the  duties  herein  imposed  upon 
him  shall  be  performed  by  the  lieutenant  governor ;  and 
if  the  secretary  of  state  is  sought  to  be  removed,  the 
duties  herein  imposed  upon  him  shall  be  performed  by 
the  state  controller ;  and  the  duties  herein  imposed  upon 
the  clerk  or  registrar  of  voters  shall  be  performed  by 
such  registrar  of  voters  in  all  cases  where  the  office  of 
registrar  of  voters  exists. 

The  recall  shall  also  be  exercised  by  the  electors  of 
each  county,  city  and  county,  city  and  town  of  the  state, 
with  reference  to  the  elective  officers  thereof,  under 
such  procedure  as  shall  be  provided  by  law. 

Until  otherwise  provided  by  law,  the  legislative  body 
of  any  such  county,  city  and  county,  city  or  town  may 
provide  for  the  manner  of  exercising  such  recall  powers 
in  such  counties,  cities  and  counties,  cities  and  towns,  but 
shall  not  require  any  such  recall  petition  to  be  signed  by 
electors  more  in  number  than  twenty-five  per  cent  of  the 
entire  vote  cast  at  the  last  preceding  election  for  all  can- 
didates for  the  office  which  the  incumbent  sought  to  be  re- 
moved occupies.  Nothing  herein  contained  shall  be 
construed  as  affecting  or  limiting  the  present  or  future 
powers  of  cities  or  counties  or  cities  and  counties  having 


Art.  XXIII,  §  1     CONSTITUTION  OP  1879.  572 

charters  adopted  under  the  authority  given  by  the  consti- 
tution. 

In  the  submission  to  the  elector  of  any  petition  pro- 
posed under  this  article  all  officers  shall  be  guided  by  the 
general  laws  of  the  state,  except  as  otherwise  herein 
provided. 

This  article  is  self -executing,  but  legislation  may  be 
enacted  to  facilitate  its  operation,  but  in  no  way  limiting 
or  restricting  the  provisions  of  this  article  or  the  powers 
herein  reserved.  (Amendment  approved  October  10, 
1911.) 

THE  RECALL.— The  fixing  of  the  tenure  of  office  of  the  officers 
of  a  municipality,  subject  to  removal  by  the  body  that  elected  them, 
is  comparatively  new  in  our  system  of  government,  and  the  in- 
terpretive branch  of  the  law  is  in  rather  an  undeveloped  state. 
(Good  V.  Common  Council  of  San  Diego,  5  Cal.  App.  265.) 

WheTe  a  municipal  charter  provides  that  the  holder  of  any  elec- 
tive office  may  be  removed  at  any  time  by  the  electors  qualified  to 
vote  for  a  successor,  the  charter  does  not  contemplate  an  ordinary 
"removal  for  cause,"  but  by  virtue  of  the  charter  provisions,  every 
elective  officer  elected  after  the  provision  was  adopted  holds  his 
office  subject  to  the  condition  subsequently  expressed  therein. 
(Good  V.  Common  Council  of  the  City  of  San  Diego,  5  Cal.  App. 
265.) 

The  recall  provision  is  valid.  The  appellant  accepted  the  trust 
subject  to  this  power  in  his  constituency,  and  the  duration  of  his 
term  of  office  is  dependent  upon  the  wish  of  the  majority  as  ex- 
pressed at  the  polls.  (Hillginger  v.  Gillman  (Wash.),  105  Pac, 
471.) 

The  provision  in  Statutes  (Mass.)  1908,  p.  542,  c.  574,  amending 
the  charter  of  the  city  of  Haverhill,  which  requires  officers  to  accept 
office  of  uncertain  terms,  with  liability  to  be  recalled  at  any  time 
without  just  cause,  is  not  unconstitutional.  (Graham  v.  Eoberts, 
85  N.  E.  1009.) 


573 


CONSTITUTION  OF  1879. 


Signers 


"It  is  contended  that  the  recall  provision  of  the  charter"  of  Dallas 
"seeks  to  substitute  within  the  municipality  a  socialistic  and  com- 
munistic system  of  government  in  lieu  of  a  republican  form  of 
government — Tve  do  not  concur  in  this  contention.  It  is  neither 
socialistic,  communistic,  nor  obnoxious  to  a  republican  form  of 
government  to  require  an  elective  officer  of  a  municipal  government 
to  submit  to  the  voters  of  the  city  the  issue  for  their  determination 
whether  he  shall  longer  continue  in  office."  (Bonner  v.  Bester- 
ling  (Tex.),  137  S.  W.  154.) 


J.  P. 


HOGE, 
President. 


Attest:  Edwin  F. 
A.  R.  Andrews, 
James  J.  Ayers, 
Clitus  Barbour, 
Edward  Barry, 
James  N.  Barton, 
C.  J.  Beerstecher, 
Isaac  S.  Belcher, 
Peter  Bell, 
Marion  Bifrgs, 
E.  T.  Blackmer, 
Joseph  C.  Brown, 
Saml.  B.  Burt, 
Josiah  Boucher, 
James  Caples, 
Auor.  II.  Chapman, 
J.  M.  Charles, 
John  D.  Condon, 
C.  W.  Cross, 


Smith,  Secretary, 

Hamlet  Davis, 

Jas.  E.  Dean, 

P.  T.  Dowling, 

Luke  D.  Doyle, 

W.  L.  Dudley, 

Jonathan  M.  Dudley, 

Presley  Dunlap, 

John  Eagon, 

Thomas  H.  Estey, 

Henry  Edgerton, 

M.  M.  Estee, 

Edward  Evey, 

J.  A.  Fileher, 

Simon  J.  Farrell, 

Aliraham  Clark  Froeman, 

Jacob  Richard  Freud, 

J.  B.  Garvey, 

B.  B.  Glasscock, 


Siffners 


CONSTITUTION   OP   1879. 


574 


Joseph  C.  Gorman, 
W.  P.  Grace, 
William  J.  Graves, 
V.  A.  Gregg, 
Jno.  S.  Hager, 
John  B.  Hall, 
Thomas  Harrison, 
Joel  A.  Harvey, 
T.  D.  Heiskell, 
Conrad  Herold, 
D.  W.  Herrington, 
S.  G.  Hilbom, 
J.  R.  W.  Hitchcock, 
J.  E.  Hale, 
Volney  E.  Howard, 
Sam  A.  Holmes, 
W.  J.  Howard, 
Wm.  Proctor  Hughey, 
W.  F.  Huestis, 
G.  W.  Hunter, 
Daniel  Inman, 
George  A.  Johnson, 
L.  F.  Jones, 
Peter  J.  Joyce, 
J.  M.  Kelley, 
James  H.  Keyes, 
John  J.  Kenny, 
C.  R.  Kleine, 


T.  H.  Laine, 

Henry  Larkin, 

R.  M.  Lampson, 

R.  Lavigne, 

H.  M.  La  Rue, 

David  Lewis, 

J.  F.  Lindow, 

Jno.  Mansfield, 

Edward  Martin, 

J.  West  Martin, 

Rush  McComas, 

John  G.  McCallum, 

Thomas  McConnell, 

John  McCoy, 

Thomas  B.  McFarland, 

Hiram  Mills, 

Wm.  S.  Moffatt, 

John  Fleming  McNutt, 

W.  W.  Moreland, 

L.  D.  Morse, 

James  E.  Murphy, 

Edmund  Navson, 

Thorwald  Klaudius  Nelson, 

Henry  Neunaber, 

Chas.  C.  O'Donnell, 

George  Ohleyer, 

IJames  0 'Sullivan, 

James  Martin  Porter, 


575 


CONSTITUTION   OF  1879. 


Signers 


William  H.  Prouty, 
M.  E.  C.  Pulliam, 
Chas.  F.  Reed, 
Patrick  Redely, 
Jno.  M.  Rhodes, 
Jas.  S.  Reynolds, 
Horace  C.  Rolfe, 
Chas.  S.  Ringgold, 
James  McM.  Shafter, 
G^iO.  W.  Schell, 
J.  Schomp, 
Rufus  Shoemaker, 
E.  O.  Smith, 
Benj.  Shurtleff, 
Geo.  Venable  Smith, 
H.  W.  Smith, 
John  C.  Stedman, 
E.  P.  Soule, 
D.  C.  Stevenson, 
Geo.  Steele, 
Chas.  V.  Stuart, 
W.  J.  Sweasey, 
Charles  Swenson, 


R.  S.  Swing, 
D.  S.  Terry, 
S.  B.  Thompson, 
F.  0.  Townsend, 
W.  J.  Tinnin, 
Daniel  Tuttle, 
P.  B.  Tully, 
H.  K.  Turner, 
A.  P.  Vacquerel, 
Walter  Van  Dyke, 
Wm.  Van  Voorhies, 
Hugh  Walker, 
Jno.  Walker, 
Byron  Waters, 
Joseph  R.  Weller, 
J.  V.  Webster, 
John  P.  West, 
Patrick  M.  Wellin, 
John  T.  Wickes, 
Wm.  F.  White, 
H.  C.  Wilson, 
Jos.  W.  Winans, 
N.  G.  Wyatt. 


TABLE  OF  STATUTES 

DECLARED  UNCONSTITUTIONAL 

IN  WHOLE  OR  IN  PART. 


Statute's 

Page 

Chapte 

1850 

93 

33 

176 

71 

205 

85 

210 

86 

254 

103 

275 

119 

428 

142 

1851 

9 

1 

Case 
Caulfield  v.  Hudson,  3  Cal.  389. 
Burgoyne  v.  Supervisors,  5  Cal.  9. 
People  V.  Burbank,   12   Cal.  378. 
Burgoyne  v.  Supervisors,  5  Cal.  9. 
George  v.   Eansom,  15   Cal.   322,   76   Am. 

Dec.  490. 
People  V.  Tinder,  19  Cal.  539,  81  Am.  Dec. 

77. 
In  re  Holdforth,  1  Cal.  438. 
Parsons  v.  Tuolumne  etc.  Co.,  5  Cal.  43, 

63  Am.  Dec.  76;  Zander  v.  Coe,  5  Cal. 

230. 
51  5     Tay    v.    Hawley,    39    Cal.    93;    Exline    v. 

Smith,   5    Cal.    112;    Crawford   v.   Bark 

Caroline  Eeed,  42  Cal.  469. 
Smith  V.  Morse,  2   Cal.  524. 

1852  78  36     State  v.   Steamship   Constitution,  42  Cal. 
578,  10  Am.  Rep.  303. 

People  V.  Weils,  2  Cal.  196,  610. 
People  V.  Rosborough,  14  Cal.  180. 

1853  71  51     State  v.   Steamship  Constitution,  42  Cal. 
578,   10   Am.   Rep.   303. 

Guy  V.  Hermance,  5  Cal.  73,  63  Am.  Dec. 

85. 
Hardenburgh  v.  Kidd,  10  Cal.  402. 

1854  84  78     Houston  v.  Williams,  13  Cal.  24,  73  Am. 
Dec.   565. 

Dickey  v.  Hurlburt,  5  Cal.  343. 

1855  80  73     Greely  v.  Townsend,  25  Cal.  604. 
Gillan  v.  Hutchinson,  16  Cal.  153. 
Stone  V.  Elkins,  24  Cal.  125. 

(577) 


387 

88  i 

78 

36  I 

162 

87  ] 

233 

146  ■ 

71 

51  i 

219 

160  < 

233 

167  : 

84 

78  : 

198 

128  : 

80 

73  ' 

145 

119 

160 

131  1 

Gonstituti 

ion — 37 

UNCONSTITUTIONAL   STATUTES.  578 

Statutes     Page      Cliapter  Case 

1855  165         138     Eobinson    v.    Magee,    9    Cal.    81,    70   Am, 

Dec.  638. 
People  V.  Johnson,  6  Cal.  499. 
Dick's  Estate  v.  Gherke,  6  Cal.  666. 
Billings  V.  Hall,  7  Cal.  1. 
MeCauley  v.  Brooks,  16  Cal.  11. 
Nougues  V.  Douglass,  7  Cal.  65. 
Peoi^le  V.   Woods,  7   Cal.  579 j   People  v. 

Bond,   10   Cal.   563;    Taylor   v.   Palmer, 

31    Cal.    240. 
People  V.  Templeton,  12  Cal.  394. 
MeCauley  v.  Weller,  12  Cal.  500. 
Ex   parte   Newman,   9    Cal.    502;    contra, 

Ex  parte  Andrews,  18  Cal.  678. 
San  Francisco  v.  Spring  Valley  W.  W.,  48 

Cal.  493. 
Brumagim  v.  Tillinghast,  18  Cal.  265,  79 

Am.   Dec.   176. 
Grogan  v.  San  Francisco,  18  Cal.  590. 
People  V.  McCreery,  34  Cal.  432;  People 

V.  Gerke,  35  Cal.  677. 
Lin  Sing  v.  Washburn,  20  Cal.  534. 
People  V.  Eaymond,  34  Cal.  492. 
People  V.  Washington,  36  Cal.  658. 
Crosby  v.   Lyon,  37   Cal.   242. 
Bourland  v.  Hildreth,  26  Cal.   161. 
Caulfield  v.  Stevens,  28  Cal.  118. 
People   V.   Sanderson,   30   Cal.   160. 
Day  V,  Jones,  31  Cal.  261. 
People  V.  Kelsey,  34  Cal.  470. 
People  V.  McCreery,  34  Cal,  432;  People 

V.  Gerke,  35  Cal.  677. 
Pryor   v.    Downey,   50    Cal.    388,    19   Am. 

Kep.  656. 
Waterloo  T.  R.  Co.  v.  Cole,  51  Cal.  381. 
Rose  V.  Estudillo,  39  Cal.  270. 
Wilson  V.   Supervisors,  47   Cal.   91. 
In  re  Market  St.,  49  Cal.  546. 
Smith  V.  Brown,  59   Cal.   672;   People  V. 

Edwards,  93  Cal.  153,  28  Pao.  831. 


180 

145 

299 

229 

1856 

54 

47 

100 

85 

110 

95 

145 

125 

1857 

222 

192 

1858 

32 

43 

124 

171 

254 

288 

305 

319 

322 

336 

1859 

343 

315 

1862 

462 

339 

539 

416 

1863 

89 

70 

145 

125 

549 

355 

586 

395 

1864 

198 

204 

431 

383 

1865- 

-66 

689 

528 

786 

565 

824 

596 

1867- 

-68 

159 

181 

176 

196 

316 

293 

1869- 

■70 

626 

434 

1871- 

■72 

243 

204 

579  UNCONSTITUTIONAL    STATUTES. 


Statutes 
1871-72 

Page 
415 
443 

Chapter 
308 
334 

1873-74r 

773 
50 

536 
54 

320 
376 
434 

453 
273 
300 

477 

331 

588 

414 

691 

460 

746 
832 
896 

511 
595 
645 

1875-76 

82 

114 

1877-78 

140 
214 
753 
181 
341 

137 
190 
495 
138 

282 

419 
442 

777 

317 
333 
501 

1880 

1 

20 

1 
26 

55 

63 

67 

80 

71 

84 

Case 
Williams  v.  Corcoran,  46  Cal.  553. 
Chollar  M.  Co.  v.  Wilson,  66  Cal.   374,  5 

Pac.  670. 
Savings  etc.  See.  v.  Austin,  46  Cal.  415. 
Young  V.  Wright,  52  Cal.  407;  Sutherland 

V.  Sweem,  53  Cal.  48. 
Weber  v.  Santa  Clara,  59  Cal.  265. 
People  V.  Townsend,  56  Cal.  633. 
Ex  parte  Wall,  48  Cal.  279,  17  Am.  Rep. 

425. 
People   V.    Pittsburg   R.    R.    Co.,    67    Cal, 

625,  8  Pac.  381. 
Reis  V  Graflf,  51  Cal.  86;  Brady  v.  King, 

53   Cal.   44. 
People  V.  Lynch,  51  Cal.  15,  21  Am.  Rep. 

677. 
Harper  v.  Rowe,  53  Cal.  233. 
Harper  v.  Rowe,  53  Cal.  233. 
People  V.  Lynch,  51  Cal.  15,  21  Am.  Rop. 

677. 
Spring  Valley  W.  W.  v.  Bryant,  52  Cal. 

132. 
People  V.   Houston,  54   Cal.   536. 
Hoagland  v.  Sacramento,  52  Cal.  142. 
Montgomery  Avenue  Case,  54  Cal.  579. 
Knox  V.  Los  Angeles,  58  Cal.  59. 
Fanning  v.  Scammel,  68  Cal.  428,  9  Pac. 

427. 
Schumacher  v.  Toberman,  56  Cal.  508. 
Purdy  V.  Sinton,  56  Cal.  133. 
Boorman  v.  Santa  Barbara,  65  Cal.   313, 

4  Pac.  31. 
Weill  V.  Kenfield,  54  Cal.  111. 
San  Francisco  v.  Broderick,  125  Cal.  188, 

57  Pac.  887. 
Hutson    v.    Protection    Dist.,   79    Cal.    90, 

16  Pac.  549,  21  Pac.  435. 
People  V.  Chapman,  61  Cal.  262. 
Ex  parte  Westerfield,  55  Cal.  550,  36  Am. 

Rep.  47. 


UNCONSTITUTIONAL   STATUTES.  580 

Statutes     Page      Chapter  Case 

18S0  119         109    Bixler's   Appeal,  59    Cal.   550;   Bixler  v. 

Sacramento,  59  Cal.  689.     (Decision  of 
Superior  Court.) 
123         116     In  re  Ah  Chong,  5  Pac.  C.  L.  J.  451. 
123         117     Doane   v.    Weil,   58   Cal.    334;    People   v. 
Parks,  58  Cal.  624;   Callahan  v.  Dunn, 
78  Cal.  366,  20  Pac.  737. 
131         118     Krause  v.  Durbrow,  127  Cal.  681,  60  Pac. 

438. 
137         124     Desmond  v.  Dunn,  55  Cal.  242. 
527         244     Leonard  v.  January,  56  Cal.  1;  Dillon  v. 
(Ban.)  Bicknell,  116  Cal.  Ill,  47  Pac.  937. 

1881  15  21     Nickey  v.  Stearns  Ranchos  Co.,  126  Cal. 

150,  58  Pac.  459. 
51  51     Ex  parte  Cox,  63  Cal.  21. 

54  52     Fitch  v.  Supervisors,  122  Cal.  285,  54  Pac. 

901. 
81  71     People  v.  Chapman,  61  Cal.  262. 

1883  54  30     People  v.   Kewen,   69   Cal.   215,   10   Pac. 

393. 
93  49     Tulare  v.  Hevren,  126  Cal.  226,  58  Pac. 

530. 
370  82     Los  Angeles  v.  Teed,  112  Cal.  319,  44  Pac. 

580. 
1885  13  15     San   Francisco   v.   Insurance   Co.,   74  Cal. 

113,  5  Am.  St.  Eep.  425,  15  Pac.  380. 
45  39     Western    Granite    etc.    Co.    v.     Knicker- 

bocker, 103  Cal.  Ill,  37  Pac.  192. 
166         154     Miller  v.  Kister,  68  Cal.  142,  8  Pac.  813; 
People  V.  Henshaw,  76  Cal.  436,  18  Pac. 
413. 
203         157     People   v.   Kewen,   69   Cal.   215,   10   Pac. 
393. 
1887  178         169     Dougherty  v.  Austin,  94  Cal.  601,  28  Pae. 

834,  29  Pac.  1092,  16  L.  R.  A.  161. 
1889  3  5     Schaezlein   v.  Cabaniss,   135   Cal.   466,   87 

Am.  St.  Eep.  122,  67  Pac.  755,  56  L.  R. 
A.  733. 
148         138     Farrell  v.  Board  of  Trustees,  85  Cal.  408, 
24  Pac.  868. 


455 
5 

1 
7 

182 

137 

195 

146 

581  UNCONSTITUTIONAL   STATUTES. 

Statutes     Pag-e     Chapter  Case 

1889  212        178     Cullen  v.   Glendora  Water  Co.,  113   Cal. 

503,  39  Pae.  769,  45  Pac.  822. 
232         206     San   Luis   Obispo   v.   Graves,   84   Cal.   71, 

23  Pac.  1032. 

302         207     People  v.   Common   Council,   85  Cal.  369, 

24  Pac.  727;  Fisher  v.  Police  Court,  86 
Cal.  158,  24  Pac.  1000. 

People  V,  Toal,  85  Cal.  333,  24  Pac.  603. 
1891  5  7     San  Francisco  v,  Broderick,  125  Cal.  188, 

57  Pac.  887. 
McCabe    v.    Carpenter,    102    Cal.    469,    36 

Pac.  836. 
Slocum  V.  Bear  Valley  Irr.  Co.,  122  Cal. 
555,  68  Am.  St.  Eep.  68,  55  Pac.  403; 
Keener  v.  Eagle  etc.  Co.,  110  Cal.  627, 
43  Pac.  14;  Ackley  v.  Black  Hawk  etc. 
Co.,  112  Cal.  42,  44  Pac.  330. 
283         205     Murray  v.   Colgan,   94   Cal.   435,   29  Pac. 

871. 
295         216     People  v.   Johnson,  95   Cal.  471,  31   Pac. 
611;  Welsh  v.  Bramlet,  98  Cal.  219,  33 
Pac.   66;   Bloss  v.  Lewis,  109  Cal.  493, 
41  Pac.  1081. 
433         226     Ex   parte    Giambonini,   117    Cal.    573,   49 

Pac.  732. 
450         231     Patty  v.  Colgan,  97  Cal.  251,  31  Pae.  1133, 

18  L.  E.  A.   744. 
513         279     Bourn  v.  Hart,  93  Cal.  321,  127  Am.  St. 

Eep.  203,  28  Pac.  951,  15  L.  E.  A,  431. 
513         280     Conlin  v.  Supervisors,  99  Cal.  17,  37  Am. 
St.  Eep.  17,  33  Pac.   753,  21  L.  E.   A. 
474. 
1893  12  16     Bradley  v.   Clark,   133   Cal.   196,  65   Pac. 

395. 
33  21     Eamish  v.  Hartwell,  126  Cal.  443,  58  Pae. 

920. 
57  45     Molineux  v.  State,  109  Cal.  378,  50  Am. 

St.  Eep.  49,  42  Pac.  34. 
59  47     Los  Angeles  v.  Teed,  112  Cal.  319,  44  Pac. 

580. 


UNCONSTITUTION.VL   STATUTES.  582 

Case 
Los  Angeles  v.  Hance,  122  Cal.  77,  54  Pac. 

3S7. 
Eauer  v.  Williams,  118  Cal.  401,  50  Pac. 

691. 
Peojile  V.  Mavkbam,  104  Cal.  232,  37  Pac. 

91S. 
Merchants'  Bank  v.  Eseondido  Irr.  Dist., 

144  Cal.  329,  77  Pac.  937. 
Provident    etc.   Assn.   v.  Davis,   143    Cal. 

253,  76  Pac.  1034. 
Darcv  v.  Mavor  of  San  Jose,  104  Cal.  642, 

38  "Pac.  500. 
Hale  V.  McGettigan.  114  Cal.  112,  45  Pac. 

1049;   Knight  v.  Martin,   128  Cal.   245, 

60  Pac.  849. 
Dwver   v.   Parker,  115   Cal.   544,   47   Pac. 

372. 
Sixth  Dist.  Agr.  Assn.  v.  Wright,  154  Cal. 

119,  97   Pac.   144. 
Taylor  v.  Mott,  123  Cal.  497,  56  Pac.  256, 
Eauer  v.  Williams,  118  Cal.  401,  50  Pac. 

691. 
Miner  v.  Justice's  Court,  121  Cal.  264,  53 

Pac.  795. 
Marsh    v.    Supervisors,    111    Cal.    368,   43 

Pac.  975;  Gett  v.  Supervisors,  111  Cal. 

366.  43  Pac.  1122. 
Sullivan  v.  Gage,  145   Cal.  759,  79  Pac. 

537. 
Ex  parte  Jentzsch,  112  Cal.  468,  44  Pac. 

803,  32  L.  E.  A.  664. 
Fatjo  v.  Pfister,  117  Cal.  83,  48  Pac.  1012; 

Dwver  v.  Parker,  115  Cal.  544,  47  Pac. 

372;   Cooley  v.   Calaveras  Co.,  121  Cal. 

482,   53   Pac.    1075;    Kiernan   v.    Swan, 

131    Cal.    410,    63    Pac.    768;    Eeid    v. 

Groezinger.  115  Cal.  551,  47  Pac.  374. 
341         221     Denman  v.  Broderiek,  111  Cal.  96,  43  Pac. 

516. 
348         223     Con'.in    v.    Supervisors,    114   Cal.    404,   46 

Pac.  279,  33  L.  E.  A.  752. 


Statutes 
1S93 

Pase 
61 

Chapte 
48 

137 

112 

168 

143 

175 

148 

229 

189 

280 

197 

346 

234 

1S95 

1 

2 

14 

8 

107 
164 

115 
160 

205 

178 

207 

181 

238 

193 

246 

200 

267 

207 

583  UNCONSTITUTIONAL   STATUTES. 

Statutes     Pape      Chapter  Case 

1895  409  12     Miner  v.  Justice's  Court,  121  Cal.  264,  53 

Pac.  795. 
1897  54  60     Popper  v.  Broderick,  123  Cal.  456,  56  Pac. 

53. 
72  78     Popper  v.  Broderick,  123  Cal.  456,  56  Pac. 

53. 
75  82     Los    Angeles   v.   Hance,   122    Cal.    77,   54 

Pac.  387. 
77  83     Estate  of  Stanford,  126  Cal.  112,  54  Pac. 

259,  58  Pac.  462,  45  L.  E.  A.  788;  Es- 
tate of  Mahoney,  133  Cal.  180,  85  Am,. 

St.   Eep.    155,   65   Pac.   389.     Overruled 

in  Estate  of  Johnson,  139  Cal.  532,  96 

Am.   St.   Rep.    161,   73   Pac.   424. 
115         lOG     Spier  v.  Baker,  120  Cal.  370,  52  Pac.  659, 

41  L.  E.  A.  196. 
135         107     Pereria  v,  Wallace,  129  Cal.  397,  62  Pac. 

61. 
192         132     Popper  v.  Broderick,  123  Cal.  456,  56  Pac. 

53. 
231         170     Johnson  v.  Goodyear  Min.  Co.,  127  Cal.  4, 

78    Am.    St.   Eep.    17,   59   Pac.   304,   47 

L.  E.  A.  338. 
304         225     Sixth  Dist.  Agr.  Assn.  v.  Wright,  154  Cal. 

119,  97  Pac.   144. 
311         227     Matter  of  Lambert,  134  Cal.  626,  86  Am. 

St.  Eep.  296,  66  Pac.  851,  55  L.  R.  A. 

856. 
452         277     Lougher   v.    Soto,   129    Cal.    610,   62   Pac. 

184;  Van  Ilarlingen  v.  Doyle,  134  Cal. 

53,   66  Pac.   44,   54   L.   R.    A.   771;   Ex 

parte  Anderson,  134  Cal.  69,  86  Am.  St. 

Rep.  236,  66  Pac.  194;  Pratt  v.  Browne, 

135   Cal.   649,   67   Pac.   1082;    Ex   parte 

Young,   154   Cal.   317,   97   Pac.   822,   22 

L.  E.  A.,  N.  S.,  330. 
1899  24  24     People  v.  Curry,  130  Cal.  82,  62  Pac.  516. 

47  46     Britton  v.  Board  of  Election  Commrs.,  129 

Cal.  337,  61  Pac.  1115,  51  L.  E.  A.  115. 


UNCONSTITUTIONAL   STATUTES.  584 

S'nfiites     Page      Chapter  Case 

1901  56  51     Hewitt  v.  Board,   148  Cal.  590,  113   Am. 

St.   Eep.   315,  84  Pac.   39,   3  L.  E.  A., 

N.  S.,  896. 
117         102     Lewis  v.  Dunne,  134  Cal.  291,  86  Am.  St. 

Eep.  257,  66  Pac.  478,  55  L.  E.  A.  833. 
332         157     Lewis  v.  Dunne,  134  Cal.  291,  86  Am.  St. 

Eep.  257,  66  Pac.  478,  55  L.  E.  A.  833. 
433         158     Lewis    v.    Dunne,    134   Cal.    291,    86    Am. 

St.  Eep.  257,  66  Pac,  478,  55  L.  E.  A. 

833. 
685         233     Tucker  v.  Barnum,  144  Cal.  266,  77  Pac. 

919. 
1903  14  11     Ex  parte   Dickey,   144  Cal.  234,  103   Am. 

St.   Eep.   82,   77   Pac.  924,  66   L.   E.  A. 

928,  1  Ann.  Cas.  428. 
1905  67  69     Ex  parte  Drexel,  147  Cal.  763,  82  Pac.  429, 

2  L.  E.  A.,  N.  S.,  588,  3  Ann.  Cas.  878. 
224         249     Harrison  v.  Colgan,   148  Cal.  69,  82  Pac. 

674. 
338         313     Ex  parte  Hayden,  147  Cal.  649,  109  Am. 

St.  Eep.  183,  82  Pac.  315. 
422         354     Ex  parte  Sohncke,  148  Cal.  262,  113  Am. 

St.  Eep.  236,  82  Pac.  956,  2  L.  E.  A., 

N.  S.,  813,  7  Ann.  Cas.  475. 
711  55     Ex  parte  Sohncke,  148  Cal.  262,  113  Am. 

St.  Eep.  236,  82  Pac.  956,  2  L.  E.  A., 

N.  S.,  813,  7  Ann.  Cas.  475. 
140         140     Ex  parte  Quarg,  149  Cal.  79,  117  Am.  St. 

Eep.  115,  5  L.  E.  A.,  N.  S.,  183,  9  Ann. 

Cas.  747. 
316         302     Ex  parte  Dietrech,  149  Cal   104,  84  Pac. 

770,  5  L.  E.  A.,  N.  S.,  873. 
1907  344  Boca  Mill  Co.  v.  Curry,  154  Cal.  326,  97 

Pac.  1117. 


TABLE  OF  PARALLEL  SECTIONS  IN  CONSTITU- 
TIONS OF  1849  AND  1879. 


1879 

1849 

1879 

1849 

Art.. 

Sec. 

Art.    Sec. 

Art. 

Sec. 

Art. 

Sec. 

I 

1 

I      1 

II 

4 

n 

4 

2 

2 

5 

6 

3 

III 

1 

III 

1 

4 

4 

IV 

1 

IV 

1 

5 

5 

2 

2 

6 

6 

3 

3 

6 

7 

4 

4 

7 

3 

4 

5 

8 

5 

6 

9 

9 

7 

10 

10 

6 

I 

14 

11 

11 

6 

IV 

28 

12 

12 

6 

29 

12 

13 

6 

Schedule 

14 

13 

8 

7 

IV 

8 

14 

8 

9 

15 

15 

9 

10 

16 

16 

10 

11 

17 

17 

11 

12 

18 

18 

12 

13 

19 

19 

13 

14 

20 

20 

14 

15 

21 

15 

16 

22 

16 

17 

23 

21 

17 

18 

24 

18 

39 

n 

1 

II        1 

19 

20 

1 

5 

20 

21 

2 

2 

21 

22 

8 

3 

22 

23 

(585) 


PARALLEL   SECTIONS. 


586 


1879 
Art. 

Sec. 

184S 
Art. 

Sec. 

1879 

Art. 

Sec. 

18^ 

Art. 

t9 
Sec. 

IV 

23 

IV 

24 

VI 

4 

VI 

4 

24 

25 

5 

6 

24 

XI 

21 

5 

8 

25 

IV 

26 

5 

26 

27 

6 

7 

27 

30 

7 

28 

38 

8 

29 

9 

30 

10 

31 

XI 

10 

11 

9 

32 

12 

33 

12 

34 

I 

22 

13 

10 

35 

14 

11 

V 

1 

V 

1 

15 

13 

2 

2 

16 

14 

3 

3 

17 

15 

4 

4 

18 

16 

5 

5 

19 

17 

6 

6 

20 

18 

7 

7 

21 

8 

8 

22 

9 

9 

23 

10 

10 

24 

11 

11 

vn 

1 

vn 

1 

12 

12 

VIII 

1  VIII 

1 

13 

14 

1 

2 

14 

15 

1 

3 

15 

16 

2 

16 

17 

IX 

1 

IX 

2 

17 

18 

2 

1 

18 

19 
20 

3 
4 

19 

21 

5 

8 

19 

Schedule 

15 

6 

20 

7 

VI 

1 

VI 

1 

8 

2 

2 

9 

« 

3 

3 

PARALLEL   SECTIONS. 


1879 

1849 

1879 

1849 

Art. 

Sec. 

Art. 

Sec. 

Art. 

Sec. 

Art.         Sec. 

X 

1 
2 
3 
4 
5 
6 

XII 

12 
13 
14 
15 
16 
17 

XI 

1 
2 
3 

18 
19 

20 

4 

XI 

4 

21 

5 

5 

22 

5 

9 

23 

6 

24 

7 

XIII 

1 

XI                13 

8 

2 

8% 

3 

9 

4 

10 

5 

11 

6 

12 

7 

13 

8 

14 

9 

15 

10 

16 

11 

17 

12 

18 

IV 

37 

13 

19 

XIV 

1 

XII 

1 

IV 

31 

2 

2 

32 

XV 

1 

3 

36 

2 

4 

33 

3 

5 

34 

XVI 

1 

vni           1 

5 

35 

1 

Schedule      16 

6 

7 

XVII 

1 

2 

XI                 15 

8 

3 

9 

10 

XVIII 

1 

X                  1 

11 

2 

2 

PARALLEL    SECTIONS. 


588 


1879 


1849 


Art. 

Sec. 

Art, 

XIX 

1 
2 
3 

4 

XX 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

XI 

12 

Schedule 

13 

XI 

14 

15 

16 

17 

18 

Sec. 


1 

2 

3 

6 

8 

11 

12 

14 

16 

17 

18 

19 

4 

20 


1879 


1849 


Ari. 

S&c. 

An. 

Sec 

XX 

19 

20 

Schedule 

13 

XXT 

1 

XTI 

1 

XXII 

1 

Schedule 

3 

2 

1 

3 

VI 

19 

3 

Schedule 

2 

4 

6 

5 

6 

6 

6 

7 

5 

8 

9 

7 

8 

9 

10 

11 

12 

10 

IV 

39 

11 

13 

TABLE  OF  CALIFORNIA  CITATIONS  TO 
CONSTITUTION  OF  1849. 

[Citations   are    to    California    Reports,    Vols.    1    to     158,  and  California 
Appellate    Reports,    Tols.    1    to    14.] 


I-l  1-8         T-11  (Con.)  II-2 

7  6  12  83  26  255    26     209 

9  504  18  251  36  671 

18  680  22  316  37  375      ii_3 

22  324  23  326  38  703    26  249 

23  464  29  256  43  432 
.S2  249  32  250 
33  281  33  281 


3G     671    40  513 

38     703    41  168 

42  168 

43  79 


I- 

-2 

22 

324 

30 

189 

6D 

372 

I- 

-3 

16 

253 

22 

316 

U2.          OUJ. 

58       61 

II-4 
26 

28 

1-15 

38 

1     440 

6     240 

II-6 

53     207 

26 

I- 

-17 

6 

253 

13 

165 

30 

189 

36 

671 

65 

595 

211 

140 

93 


48  334 

50  403  ^^  ^"^    26  186 

51  248 

53  45  1-16          III-l 

53  212  22     316     5  19 

53  412  5  112 

59  245  T_,-        8  15 

66  500  R     oro    10  403 

69  372  ,,     f^^    17  557 

1-4       109  449  o^      ic^    20  43 


9     504   109     622    ,«  i^^         22  478 

17  612   130     495    H  ^IJ    24  126 

18  680                65  595    29  452 

T  -  30  167 

1-5        „„  ^-^     ,T.      1-21  33  281 

11     226    22     316    33  249    34  525 

46  514 

1-7          I-ll         II-l  47  653 

19  541    17     552    5  25    50  403 
41      31    24     544    26  178   151  285 

(589) 


CITATIONS.  590 

lV-1  rV-23                   IV-36                    Y-13 

5               21  36             621  24             538          34             536 

46  514  106             116  35             166          43             441 

47  652  62  461 

IV-24     111      62      V-16 
IV-3       9     347  2     223 

26     254  rV-37      10      44 

IV-25      31     252    26     253 
IV-5       2     299    34     523    34     536 
26     253     6     383    47     657    62     569 
9     522    48     318 
IV-7      10     316    51      24      V-17 
8     415    36     622  10      44 

144     387      V-1        62     569 
IV-8  5      21 

34     535      rV-31  V-18 

5      46      V-2       15      62 
IV-10      22     423    10      44 


34     535    37     379    26     253 
37     540    62     569 


V-20 

IV-17      48     509                II  2^1 

6     660    52     143      V-4        ^^  '^^'^ 

9  522    54      95  34     536 

39     541    77     371                 n^  o^r, 

98      53      V-8        9  347 

IV-18     109     580  1     535    47  366 

34     535   111      66  2     203 

119     341  3     505       VI-1 

IV-19  6     290     1  145 

2     211      rV-32  7     523     1  380 

22     314    24     538  8      12     5  20 

45     218    35     166  20     507    11  85 

118     483    62     461  22     314    12  387 

111      62  34     541    21  417 

IV-20  37     641    22  478 

22     314      IV-34                  34  523 

52     198      V-11       34  532 

rV-21     105     377  34     536    39  517 

10      43                            41  131 

22     314      rV-35        V-12       48  74 

52      39   105     378  22     314    52  223 


)91 

VI- 

2 

VI- 

ClTA-] 
6 

PiONS. 
VI-8  (Con.) 

Vl-16 

2 

5 

202 

3 

389 

39 

99 

12 

392 

104 

4 
5 

342 
95 

41 
42 

131 
56 

30 
38 

163 
395 

5 

230 

44 

125 

VI-3 

9 

87 

45 

217 

VI-17 

2 

202 

10 

253 

45 

679 

27 

513 

8 

16 

24 

65 

48 

72 

55 

238 

10 

46 

26 

383 

51 

433 

28 

121 

52 

223 

VI-18 

30 

575 

53 

413 

59 

191 

VI- 

-4 

31 

144 

58 

402 

1 

87 

31 

339 

4Ap. 

119 

VI-19 

1 

91 

34 

688 

21 

416 

1 

145 

36 

28 

VI- 

-9 

3 

248 

42 

56 

3 

389 

VIII-1 

3 

389 

51 

501 

5 

279 

6 

500 

9 

89 

52 

491 

6 

66 

7 

66 

10 

46 

54 

288 

9 

88 

13 

182 

10 

253 

58 

400 

15 

92 

15 

454 

13 

30 

64 

288 

19 

572 

16 

253 

25 

28 

79 

484 

24 

66 

23 

174 

25 

95 

157 

788 

24 

452 

27 

206 

27 

107 

28 

119 

112 

167 

30 

101 

VI- 

-7 

42 

67 

31 

144 

16 

442 

53 

413 

IX- 2 

34 

33 

30 

683 

157 

776 

37 

244 

40 

482 

40 

654 

42 

56 

VI- 

-10 

IX-3 

49 

140 

VI- 

-8 

8 

382 

48 

50 

53 
55 

291 
191 

5 
5 

22 
104 

VI- 
32 
43 

-11 
299 
435 

IX-4 

60 
157 

654 
4 

6 
9 

89 
87 

123 

616 

10 

403 

VI- 

-14 

IX-5 

20 

44 

5 

232 

5 

22 

VI 

-5 

2S 

119 

9 

87 

1 

381 

30 

575 

X-2 

3 

504 

34 

689 

VI- 

-15 

26 

186 

11 

85 

36 

27 

2 

203 

12 

387 

37 

161 

9 

346 

X-7 

29 

485 

38 

157 

12 

392 

55 

524 

CITATIONS. 

SI 

XI-1 

XI-6  (Con.) 

XI-L3 

(Con.) 

XI-14 

5              32 

34             541 

4 

49 

153             362 

50            572 

45             558 

12 

83 

13 

350 

XI-15 

XI-3 

XI-7 

14 

16 

14             474 

17              20 

6             289 

22 

369 

24             640 

22             307 

7             102 

29 

451 

24             243 

22             314 

30 

683 

XI-16 

79             113 

34 

475 

58            472 

XI-4 

128             604 

34 

657 

33             494 

lAp.          7 

37 

246 

XI-18 

34             532 

40 

513 

2             211 

47             656 

XI-8 

41 

354 

22             316 

48             318 

23             182 

43 

335 

50             564 

43 

434 

XI-19 

58               61 

XI-9 

44 

326 

26             211 

121             551 

34             533 

46 

506 

47             657 

46 

556 

XII-4 

XI-5 

51               29 

47 

92 

27            211 

33             404 

47 

648 

39                 9 

XI-10 

51 

244 

XII-31 

47             656 

27            207 

51 

52 

501 
81 

61                5 

XI-6 

XI-13 

52 

601 

8               16 

1             252 

58 

61 

23            314 

2            592 

TABLE  OP  CALIFORNIA  CITATIONS  TO 
CONSTITUTION  OF  1879. 

[Citations   aie   to    California   Eeports,    Vols.    1    to  158,    and   California 
Appellate   Beports,    Vols.    1   to    14.] 


I-l 

T-6  (Con.) 

I- 

8  (Con.) 

I-ll  (C 

on.) 

65 

35 

67 

257 

9Ap. 

283 

111 

569 

312 

471 

156 

737 

9Ap. 

543 

113 

646 

128 

434 

lAp. 

199 

114 

146 

133 

354 

8Ap. 

469 

I- 

-9 

118 

305 

133 

377 

8  Ap. 

5G6 

72 

466 

119 

241 

136 

125 

11  Ap. 

575 

73 

123 

122 

147 

147 

650 

112 

97 

126 

37 

147 

763 

1-7 

139 

121 

127 

7 

148 

127 

64 
87 
122 
139 
5  Ap. 
8  Ap. 
9Ap. 

266 
354 
139 
589 
623 
233 
250 

129 

343 

149 

400 

I- 

IC 

1 

134 

55 

154 

322 

129 

343 

136 

528 

157 

774 

137 

481 

158 

325 

I- 

11 

138 

381 

5Ap. 

759 

59 

12 

140 

487 

6Ap. 

236 

60 
65 

189 
35 

143 
144 

414 
269 

1-2 

68 

145 

147 

334 

92 

316 

1-8 

69 

151 

148 

265 

56 

233 

71 

631 

148 

748 

1-3 

59 

245 

73 

582 

149 

400 

105 

606 

60 

104 

76 

442 

151 

334 

144 

79 

65 

646 

84 

76 

153 

61 

108 

663 

89 

523 

155 

381 

1-4 

111 

612 

90 

558 

155 

657 

59 

13 

115 

53 

91 

249 

157 

55 

60 

201 

152 

73 

94 

603 

157 

75 

79 

176 

5Ap. 

465 

104 

351 

157 

158 

5Ap. 

468 

109 

334 

157 

163 

1-6 

8Ap. 

219 

109 

497 

1  Ap. 

199 

54 

103 

8Ap. 

755 

111 

371 

6Ap. 

240 

Constitution — 38 

(i 

593) 

CITATIONS. 

59 

I-ll  (C( 

on.) 

1-13  (C( 

)ii.) 

I- 

■15 

I-! 

11  (C 

on.) 

11  Ap. 

407 

7  Ap. 

753 

134 

661 

8. 

^p. 

535 

12  Ap, 

405 

8  Ap. 
9Ap. 

117 

200 

I- 

-16 

12. 

Ap. 

405 

1-12 
5Ap. 

649 

9Ap. 
11  Ap. 

13  Ap. 

14  Ap. 

250 
472 
545 
114 

72 
116 
146 

466 
523 
624 

54 
57 

1-22 

247 
609 

i-ia 

I- 

■17 

69 

485 

65 

223 

1-14 

65 

594 

83 

403 

66 

102 

59 

265 

67 

382 

83 

494 

68 

630 

66 

501 

70 

155 

86 

50 

69 

372 

68 

65 

158 

325 

92 

316 

70 

18 

74 

262 

115 

548 

70 

177 

79 

551 

I- 

■19 

128 

247 

82 

459 

91 

456 

68 

288 

129 

403 

100 

153 

94 

492 

105 

606 

132 

219 

103 
104 

354 
527 

94 
95 

608 
223 

155 

546 

144 
147 

387 

582 

107 

288 

98 

262 

I- 

-20 

( 

9. 

Ap. 

159 

115 

61 

98 

617 

144 

173 

116 

250 

103 

616 

1-23 

127 

7 

106 

284 

I- 

-21 

129 

347 

130 

123 

109 

622 

60 

189 

Xiaif 

133 

351 

111 

563 

65 

35 

136 

125 

118 

287 

69 

151 

1-24 

[ 

144 

56 

118 

572 

73 

371 

117 

123 

145 

90 

126 

153 

112 

471 

155 

389 

146 

315 

130 

495 

118 

5 

155 

789 

150 

34 

130 

634 

129 

343 

150 

550 

133 

105 

134 

55 

151 

204 

137 

579 

137 

181 

II-l 

152 

617 

137 

621 

143 

414 

92 

321 

154 

308 

144 

212 

143 

573 

117 

123 

154 

322 

151 

273 

148 

265 

120 

374 

154 

390 

154 

322 

149 

400 

127 

88 

1  Ap. 

199 

155 

320 

151 

334 

136 

451 

2  Ap. 

204 

157 

75 

152 

233 

145 

341 

5Ap. 

214 

lAp. 

444 

154 

330 

146 

513 

5Ap. 

590 

2  Ap. 

560 

156 

74 

151 

603 

5Ap. 

750 

5  Ap. 

730 

157 

55 

152 

231 

6Ap. 

236 

10  Ap. 

381 

6 

Ap 

237 

7 

Ap. 

413 

595 

CITATIONS. 

11-21/2 

IV- 

1  (Con.) 

IV- 

■10 

IV-22  (C 

!on.) 

146 

316 

139 

28 

80 

213 

71 

630 

151 

602 

145 

686 

77 

134 

152 

434 

151 

803 

IV- 

■15 

84 

58 

155 

780 

152 

236 

54 

112 

92 

55 

&- 

A.p. 

159 

72 

467 

106 

116 

II-4 

80 

213 

121 

19 

105 

462 

IV-2- 

85 

336 

123 

151 

7Ap. 

553 

56 

101 

100 

421 

126 

118 

96 

291 

121 

267 

144 

684 

II-5 

114 

114 

145 

688 

151 

800 

146 

316 

130 

88 

15« 

84 

154 

129 

154 

282 

144 

173 

156 

504 

146 

607 

IV- 

-16 

8Ap. 

531 

III-l 

72 

467 

58 

643 

IV- 

3 

80 

213 

IV-24 

61 

322 

55 

622 

83 

494 

55 

496 

68 

196 

56 

100 

85 

337 

57 

613 

80 

234 

96 

291 

121 

267 

58 

635 

102 

470 

114 

169 

156 

501 

60 

30 

106 

422 

74 

41 

123 

527 

IV-4 

IV- 

-18 

74 

552 

126 

672 

55 

622 

85 

645 

80 

270 

127 

159 

56 

100 

108 

662 

84 

228 

129 

604 

96 

264 

122 

293 

88 

534 

140 

1 

119 

438 

145 

37 

93 

635 

146 

607 

154 

281 

147 

533 

102 

31 

148 

631 

154 

281 

102 

418. 

150 

318 

IV- 

■5 

114 

149 

151 

43 

65 

578 

IV-20 

117 

86 

155 

656 

66 

29 

61 

207 

120 

373 

156 

501 

96 

291 

73 

231 

122 

79 

157 

422 

145 

425 

154 

281 

125 

414 

1  Ap. 

67 

2 

Ap. 

55 

128 

668 

11  Ap. 

572 

IV- 

-6 

129 

570 

65 

577 

IV- 

-21 

129 

606 

IV-: 

I 

96 

290 

136 

445 

130 

91 

56 

100 

152 

233 

154 

28 

132 

219 

63 

21 

156 

474 

133 

76 

72 

466 

IV- 

-22 

134 

478 

92 

307 

IV- 

-9 

61 

"267 

135 

652 

96 

291 

146 

606 

69 

77 

139 

463 

CITATIONS. 

51 

IV- 

24  ( 

[Con.) 

IV-25  (Con.) 

Sub.  3  (Con.) 

Sub. 

13 

140 

487 

140 

480 

120 

304 

83 

402 

141 

334 

142 

195 

126 

230 

142 

13 

143 

414 

127 

7 

Sub. 

15 

143 

258 

149 

399 

lAp. 

573 

126 

117 

143 

627 

150 

322 

144 

387 

150 

566 

Sub, 

.4 

Sub. 

17 

146 

650 

151 

478 

62 

465 

126 

117 

150 

326 

152 

231 

151 

50 

154 

330 

Sub. 

6 

Sub. 

19 

154 

202 

155 

381 

123 

527 

100 

120 

154 

388 

156 

74 

118 

306 

155 

113 

157 

55 

Sub. 

,7 

124 

698 

155 

384 

6Ap. 

240 

114 

146 

155 

658 

SAp. 

533 

Sub. 

20 

157 

58 

11  Ap. 

361 

Sub. 

.9 

55 

495 

157 

75 

11  Ap. 

407 

55 

622 

83 

402 

1. 

Ap. 

64 

12  Ap. 

£27 

65 

123 

2 

Ap. 

252 

12  Ap. 

292 

84 

76 

Sub. 

23 

11. 

Ap. 

306 

12  Ap. 

291 

94 

620 

67 

360 

12. 

Ap. 

29 

98 

224 

Sub. 

1 

109 

335 

•Sub. 

24 

IV- 

-25 

62 

465 

111 

102 

83 

402 

55 

40t) 

120 

401 

113 

646 

127 

7 

55 

618 

121 

267 

114 

410 

57 

613 

118 

306 

Sub. 

27 

59 

8 

Sub. 

2 

148 

748 

55 

402 

60 

32 

55 

551 

104 

351 

61 

38 

60 

81 

Sub. 

10 

124 

698 

61 

267 

60 

189 

60 

28 

148 

384 

63 

382 

62 

465 

83 

402 

72 

466 

67 

360 

105 

583 

Sub. 

28 

73 

77 

112 

471 

119 

521 

62 

465 

81 

499 

lAp. 

149 

124 

698 

65 

123 

84 

229 

65 

291 

87 

79 

Sub. 

3 

Sub. 

11 

85 

413 

93 

400 

62 

465 

55 

622 

98 

224 

105 

616 

83 

402 

81 

501 

111 

102 

124 

696 

93 

424 

100 

425 

113 

646 

135 

518 

100 

120 

111 

102 

114 

410 

137 

518 

113 

512 

111 

371 

118 

305 

128 

381 

117 

363 

124 

698 

124 

698 

597 

CITATIONS, 

Sub.  28  (Con.) 

rv-26 

IV-31  ( 

^Con.) 

V-1 

125 

192 

68 

289 

126 

118 

148     504 

132 

221 

87 

607 

138 

273 

1  Ap.   64 

89 

378 

143 

331 

Sub. 

29 

104 

599 

144 

692 

V-2 

62 

465 

127 

118 

149 

528 

56     101 

65 

123 

130 

326 

151 

800 

62     569 

68 

145 

146 

658 

152 

735 

99      45 

85 

496 

150 

241 

153 

228 

114     169 

89 

523 

154 

336 

154 

129 

9  Ap.   154 

92 

606 

12. 

Ap. 

647 

156 

475 

103 

395 

156 

504 

V-7 

104 

644 

IV- 

•28 

157 

527 

148     504 

113 

645 

80 

213 

6  Ap. 

747 

115 

549 

8  Ap. 

535 

V-8 

118 

306 

IV 

-29 

62     565 

126 

37 

61 

267 

IV- 

-32 

62     568 

144 

269 

115 

532 

72 

465 

66     655 

151 

800 

74 

125 

93     155 

Sub. 

33 

156 

504 

77 

475 

114     170 

81 

498 

80 

270 

123     309 

84 

76 

rv-30 

92 

606 

127     397 

91 

249 

115 

532 

93 

326 

9  Ap.   154 

94 

620 

156 

504 

115 

532 

100 

120 

121 

21 

V-9 

109 

497 

[V- 

31 

123 

498 

130      89 

111 

371 

72' 

473 

138 

275 

146     607 

112 

471 

74 

125 

156 

504 

114 

410 

77 

475 

V-14 

118 

306 

80 

270 

IV- 

-33 

151     240 

118 

404 

83 

265 

145 

633 

156     486 

119 

523 

92 

606 

6  Ap.   262 

124 

698 

93 

326 

IV- 

-34 

126 

230 

97 

252 

94 

435 

V-15 

127 

7 

99 

21 

145 

771 

56     101 

127 

684 

109 

380 

156 

504 

62     569 

130 

134 

112 

315 

114     169 

132 

221 

115 

532 

IV- 

-35 

144 

269 

117 

176 

86 

550 

V-1 6 

148 

148 

118 

546 

146 

610 

62     569 

lAp.      573     123  498  1  Ap.       55  9  Ap.      158 


CITATIONS. 

5! 

V- 

17 

VI-3 

Vl-4  (C 

Jon.) 

VI- 

-5 

56 

101 

56 

101 

149 

428 

54 

186 

9 

Ap. 

154 

81 

460 

149 

482 

60 

103 

83 

112 

149 

712 

60 

152 

V- 

19 

99 

45 

151 

30 

60 

307 

9 

Ap. 

575 

VI-4 

151 
151 

203 
518 

60 
61 

427 
71 

54 

103 

152 

110 

62 

41 

VI- 

-1 

55 

191 

152 

603 

64 

444 

54 

186 

60 

115 

155 

66 

65 

476 

62 

465 

60 

654 

156 

84 

65 

641 

66 

4 

62 

41 

157 

4 

66 

204 

71 

633 

65 

99 

157 

773 

71 

383 

78 

557 

65 

382 

2Ap. 

160 

71 

555 

82 

344 

65 

645 

2  Ap. 

316 

73 

183 

83 

112 

67 

187 

2Ap. 

533 

76 

184 

85 

335 

79 

107 

2Ap. 

664 

78 

557 

97 

216 

79 

486 

2Ap. 

728 

80 

41 

114 

330 

82 

162 

3Ap. 

238 

82 

305 

119 

232 

82 

426 

3Ap. 

645 

83 

493 

120 

401 

83 

112 

3Ap. 

646 

84 

120 

121 

267 

94 

353 

5Ap. 

548 

87 

231 

140 

12 

95 

646 

5  Ap. 

678 

92 

50 

143 

246 

100 

120 

6  Ap. 

114 

93 

463 

151 

468 

108 

663 

7Ap. 

3 

94 

355 

153 

165 

110 

39 

7  Ap. 

221 

94 

397 

155 

386 

120 

569 

7Ap. 

257 

100 

120 

156 

480 

122 

534 

7Ap. 

567 

103 

120 

157 

419 

138 

429 

7Ap. 

658 

104 

203 

158 

448 

142 

628 

8  Ap. 

434 

110 

264 

3 

Ap. 

645 

146 

138 

8Ap. 

490 

117 

381 

6 

Ap. 

739 

147 

265 

8  Ap. 

755 

122 

119 

11 

Ap. 

361 

147 

347 

9Ap. 

210 

123 

695 

148 

70 

9  Ap. 

218 

130 

98 

VI-2 

148 

742 

10  Ap. 

567 

133 

59 

81 

460 

148 

773 

11  Ap. 

27 

134 

588 

82 

599 

149 

292 

11  Ap. 

298 

138 

70 

83 

112 

149 

296 

11  Ap. 

385 

138 

154 

83 

494 

149 

309 

12  Ap. 

122 

140 

133 

95 

43 

149 

324 

13  Ap. 

391 

144 

773 

148 

177 

149 

351 

13  Ap. 

736 

149 

793 

10  Ap.   457   149     456    14  Ap.   624   150     46S 


599  CITATIONS. 

VI-5  (Con.)  "  VI-8  VI-15                   VI-20 

481  130             573  158             448        103             413 

568  6Ap.      771  122             288 

598  VI-16  153            167 

97  Vl-9  80  222 

98  86  29  VI-21 
464  104              234  VT-17                 ^^              ^^^ 

519  118                           483  g^                   ^'ggg 

'I  ^^P-      ^^^  138               37          80             221 

II  VI-11  148      70 

4^^  55     611  9Ap.   578    ^^  VI-24 

!qi  60      103  62      514 

f^^  60     152  VI-18       7Ap.   228 

181  60     427  118     483      vi-^9 

227  80      ^40  154     281    §0    ^  222 
720 

47g  114      331  yr  JO         VI-34 

457  \l\             267  55^'''238    80     222 


362  tit  itr.         65     261 


486  \t'i  %l         65     431    ,0  Ad   298 

274   H2      II         65     569    ^^  ^^-      "^  * 


VI- 

11 

55 

611 

60 

103 

60 

152 

60 

427 

80 

40 

90 

502 

114 

331 

121 

267 

122 

119 

122 

534 

130 

98 

133 

76 

143 

246 

151 

469 

158 

448 

4  Ap. 

720 

6  Ap. 

739 

VI- 

•13 

78 

560 

85 

336 

97 

216 

12t) 

401 

151 

469 

11  Ap. 

361 

VII-1 


86  33  IX-1 

^-^  {^1      46Q  88  270   118     120 

266  151     469  gg  436   12I      22 

^^1  4Ar^   79n  ^^  181    124     699 

28  fit^'   7?q  97  453    151      802 

44  6Ap.   739  j^g  j4 

234  vT-13  129  509       IX-2 

455  7g  ^^   ^""ggo  130  8    87     396 

653  g5     336  133  398       j^_3 

15  97     216  149  41 

4^^  12t)     401  156  727 

10  -.rri        4f;Q  4  Ap.  96 

fO  1  Ap.   361  4a|>.  218 

165  ^  10  Ap.  491 

211  VI-14  11  Ap.  467      IX-4 

56     101  11  Ap.  553    70     157 

VI-7  94      47  13  Ap.  367    97     431 

266  103     491  13  Ap.  636   104     658 

455  155     814  14  Ap.  101   143     331 


56 

102 

114 

335 

114 

561 

123 

308 

CITATIONS. 

6U 

IX- 

-5 

IX-12 

XI-4 

(Con.') 

XT-5(C 

on.) 

55 

334 

56 

101 

114 

561 

115 

548 

55 

490 

118 

308 

118 

308 

97 

431 

IX- 

-18 

118 

404 

118 

404 

104 

350 

5Ap. 

419 

129 

574 

125 

192 

117 

523 

X-1 

134 

70 

128 

247 

124 
134 

698 
65 

63 

490 

154 

330 

129 
131 

574 

550 

141 

376 

X-4 

XI-5 

134 

70 

148 

384 

61 

264 

53 

748 

135 

650 

148 

753 

56 

103 

136 

376 

XI-1 

58 

90 

136 

655 

IX- 

-6 

56 

103 

58 

569 

141 

429 

55' 

334 

61 

277 

60 

514 

141 

726 

97 

431 

114 

320 

61 

277 

144 

269 

104 

63 

114 

561 

65 

123 

148 

747 

117 

523 

129 

574 

65 

288 

153 

168 

118 

119 

134 

70 

66 

4 

154 

330 

124 

698 

8. 

A.p. 

679 

73 

77 

157 

160 

134 

65 

76 

95 

157 

421 

141 

375 

XI-2 

81 

500 

3Ap. 

182 

148 

388 

61 

Zi  1 

84 

75 

3Ap. 

274 

152 

517 

71 

313 

88 

531 

4  Ap. 

119 

lX-7 

61 

XI-3 

277 

94 
95 

603 
332 

5Ap. 
5Ap. 

467 
679 

55 

333 

97 

331 

95 

473 

117 

522 

117 

196 

98 

222 

XI- 

6 

153 

778 

134 

522 

98 

228 

55 

246 

152 
154 

228 
330 

100 

273 

58 

566 

55 

IX- 

-8 
334 

103 
104 

394 
130 

60 
61 

81 

277 

71 

630 

XI-4 

105 

626 

61 

319 

56 

103 

106 

197 

64 

242 

IX-9 

61 

277 

109 

334 

66 

5 

55 

334 

65 

123 

109 

497 

69 

470 

66 

508 

73 

77 

111 

103 

73 

76 

69 

216 

84 

76 

111 

370 

73 

312 

104 

658 

94 

624 

111 

569 

73 

622 

123 

619 

98 

224 

113 

516 

74 

26 

109 

334 

113 

645 

74 

125 

IX- 

-11 

109 

496 

114 

327 

76 

446 

104 

658 

114 

320 

114 

561 

81 

497 

601 

CITATIONS. 

XI-6 

(Con.) 

XI-6  (Con.) 

XI-7 

(Con.) 

XI-8  (C 

on.) 

82 

341 

148 

629 

84 

306 

138 

131 

85 

346 

148 

752 

91 

590 

141 

207 

86 

41 

150 

82 

111 

103 

142 

300 

87 

92 

151 

470 

114 

320 

143 

556 

87 

606 

151 

652 

126 

409 

143 

560 

91 

249 

152 

7 

129 

574 

143 

569 

92 

316 

152 

230 

145 

175 

94 

74 

152 

594 

X] 

:-8 

145 

291 

94 

621 

153 

165 

55 

253 

145 

742 

95 

111 

154 

225 

55 

613 

147 

530 

99 

560 

154 

331 

56 

104 

148 

133 

302 

304 

155 

381 

60 

81 

150 

74 

104 

275 

155 

610 

61 

277 

151 

467 

104 

644 

155 

788 

61 

231 

152 

9 

111 

103 

157 

418 

69 

477 

153 

164 

114 

147 

157 

716 

73 

82 

155 

608 

114 

321 

158 

85 

79 

176 

157 

147 

115 

514 

1 

Ap. 

633 

82 

342 

158 

78 

118 

403 

3 

Ap. 

274 

85 

335 

4Ap. 

238 

123 

459 

4 

Ap. 

238 

85 

345 

6Ap. 

219 

123 

603 

5 

Ap. 

578 

86 

40 

8Ap. 

235 

126 

386 

5 

Ap. 

581 

87 

606 

9Ap. 

781 

127 

666 

6 

Ap. 

223 

92 

612 

10  Ap. 

384 

129 

514 

8 

Ap. 

55 

97 

593 

131 

33 

9 

Ap. 

781 

105 

624 

XI-8y2 

132 

381 

10 

Ap. 

468 

114 

147 

120 

399 

132 

442 

11 

Ap. 

361 

114 

364 

126 

406 

133 

104 

11 

Ap. 

406 

115 

516 

128 

462 

135 

519 

12 

Ap. 

529 

119 

233 

132 

441 

138 

131 

13 

Ap. 

277 

121 

265 

135 

514 

138 

152 

13 

Ap. 

583 

121 

553 

136 

586 

141 

207 

13 

Ap. 

774 

123 

605 

145 

53 

142 

515 

126 

390 

145 

742 

143 

553 

XI- 

•7 

128 

463 

148 

133 

143 

567 

55 

247 

129 

574 

151 

470 

144 

391 

56 

104 

130 

89 

153 

164 

145 

634 

58 

566 

131 

264 

157 

419 

145 

688 

60 

81 

132 

375 

157 

484 

147 

535 

61 

37 

133 

104 

3Ap. 

719 

148 

382 

61 

277 

134 

52 

6Ap. 

224 

CITATIONS. 

6C 

XI- 

8}  (Con.) 

XI-11 

(Con.) 

XI 

-11 

(Con.) 

XT-12  (C 

Ion.) 

6 

Ap. 

738 

65 

35 

145 

631 

92 

319 

13 

Ap. 

773 

65 

270 

147 

334 

97 

218 

66 

45-0 

149 

761 

99 

560 

XI- 

-9 

67 

103 

150 

80 

100 

272 

61 

277 

68 

296 

152 

470 

102 

111 

62 

563 

69 

9*0 

154 

322 

102 

471 

62 

566 

69 

151 

154 

682 

104 

644 

81 

590 

72 

115 

155 

117 

112 

70 

85 

596 

73 

77 

158 

745 

117 

86 

87 

396 

73 

148 

1 

Ap. 

184 

121 

551 

92 

319 

73 

371 

2 

Ap. 

722 

124 

696 

94 

603 

73 

633 

5 

Ap. 

499 

129 

604 

95 

473 

74 

23 

5 

Ap. 

597 

134 

148 

98 

221 

84 

305 

6 

Ap. 

10 

143 

567 

104 

644 

87 

165 

8 

Ap. 

297 

144 

333 

109 

508 

90 

620 

8 

Ap. 

443 

150 

90 

114 

123 

91 

590 

8 

Ap. 

565 

154 

335 

118 

309 

94 

391 

8 

Ap. 

679 

5Ap. 

648 

118 

362 

96 

356 

9 

Ap. 

74 

8  Ap. 

439 

129 

527 

96 

608 

9 

Ap. 

781 

136 

65 

98 

556 

10 

Ap. 

604 

XI-13 

138 

16 

98 

684 

11 

Ap. 

514 

55 

618 

144 

277 

99 

560 

12 

Ap. 

259 

59 

96 

145 

197 

102 

489 

12 

Ap. 

326 

60 

32 

155 

754 

103 

114 

61 

277 

157 

157 

104 

644 

XI- 

-12 

64 

507 

8 

Ap. 

22 

105 

616 

58 

644 

71 

312 

8 

Ap. 

44 

106 

283 

60 

32 

71 

313 

11 

Ap. 

578 

108 

327 

60 

155 

71 

631 

14 

Ap. 

664 

109 

321 

61 

277 

80 

270 

112 

70 

62 

643 

86 

48 

XI-: 

10 

124 

348 

65 

270 

87 

607 

61 

277 

129 

574 

66 

451 

97 

219 

92 

319 

131 

466 

69 

90 

99 

560 

104 

644 

134 

70 

69 

610 

112 

329 

134 

111 

71 

313 

112 

564 

XI-: 

11 

134 

145 

73 

77 

118 

308 

57 

607 

139 

183 

73 

371 

125 

193 

61 

277 

140 

230 

74 

117 

126 

134 

€1 

375 

143 

371 

87 

€07 

133 

103 

603  CITATIONS. 

XI-13  (Con.)  XI-18  (Con.)  XI-19  (Con.)  XII-2 

144     333  74  417  93  161  62     460 

148     631  75  505  98  618  125     410 

150      82  92  342  118  5 

152     234  97  219  118  483  XII-3 

99  413  118  584  62     461 

XI-14  107  648  129  402  97      95 

55     618  109  153  137  118  108     425 

59     279  111  322  142  287  111      63 

61     277  112  163  143  371  116     384 

73      77  112  313  145  632  122     523 

87     607  112  326  148  315  124     150 

112  540  150  558  125     410 

XI-15  113  2tJ2  151  428  136     437 

61     277  118  530  152  586  142     384 

119  44  153  27  147     640 

XI-16  119  227  155  651  154     353 

61     277  124  67  158  82  154     782 

87     607  131  397  1  Ap.  673  4  Ap.   292 

92     319  135  500  2  Ap.  560  5  Ap.   705 

97     219  136  405  2  Ap.  722  12  Ap.   695 

103     493  143  179  13 Ap.   27 

108             565  144  395 

112             315  146  730  XI-21  XII-4 

112  329  148  709  'i^  389  153             703 

113  211  150  86  XII-5 
146             719  152  172  73  77 

1RV  153  374  xn-1  154  331 

152                 8  ^3  ^^  XII-7 

XI-17  XI-19  83  413  91  340 

61             277  54  246  92  316  121               19 

87             608  61  24  123  527  154             328 

97             219  61  277  125  412  155             650 

113             211  62  108  131  33  xiI-9 

136             445  62  232  153  702  io7             643 

69  466  154  331  133             612 

XI-18  69  482  155  652  3  Ap.      710 

61  277  72  6  157  598 

62  642  73  75  1  Ap.  67  XII-10 

74             259  92  342  11  Ap.  404  72             466 


CITATIONSj 

6C 

XIT-10 

(Con.) 

XII-16  (Con.) 

XII-22 

(Con.) 

XIII-1  (Con.) 

116 

100 

102 

48 

105 

544 

2Ap. 

68 

152 

586 

106 

58 

132 

678 

2Ap. 

595 

154 

274 

107 

380 

133 

26 

134 

587 

142 

225 

XIII-2 

XII- 

11 

136 

439 

104 

621 

59 

331 

141 

315 

XII- 

23 

137 

525 

65 

617 

144 

205 

142 

225 

149 

87 

73 

77 

150 

468 

93 

308 

151 

159 

XIIl-1 

XIII- 

-4 

135 

585 

4Ap. 

370 

56 

202 

59 

543 

147 

582 

6  Ap. 

87 

57 

600 

60 

58 

152 

457 

10  Ap. 

72 

59 

336 

66 

213 

154 

75 

11  Ap. 

226 

62 

108 

72 

36 

157 

729 

11  Ap. 

239 

65 

457 

91 

11 

2Ap. 

.   130 

12  Ap, 

227 

66 

603 

96 

625 

97 

220 

99 

609 

XII- 

12 

XII-17 

97 

324 

118 

492 

67 

535 

132 

685 

108 

192 

123 

355 

93 

418 

2Ap. 

560 

111 

86 

128 

592 

XII- 

14 

3Ap. 

683 

113 

397 

128 

610 

116 

23 

131 

361 

135 

584 

XII-18 

119 

521 

134 

86 

135 

625 

132 

686 

128 

592 

144 

435 

2  Ap, 

,   639 

128 

612 

145 

55 

13  Ap 

27 

XII-19 

131 

613 

153 

615 

XII- 

15 

132 

686 

132 

268 

155 

353 

99 

133 

145 

639 

132 

600 

11  Ap. 

463 

115 

311 

134 

478 

146 

651 

XII-20 

1 

137 

518 

xni- 

-5 

155 

657 

132 

686 

139 

210 

59 

544 

156 

468 

133 

26 

142 

225 

91 

11 

158 

281 

144 

184 

142 

284 

96 

626 

148 

85 

99 

608 

XII- 

16 

xn-21 

149 

583 

103 

376 

66 

209 

109 

322 

152 

767 

110 

541 

71 

488 

132 

686 

153 

778 

131 

604 

73 

183 

144 

193 

155 

146 

8Ap. 

670 

83 

493 

155 

353 

94 

137 

XII-22 

155 

650 

XIII 

-8 

98 

167 

79 

'l63 

157 

621 

56 

200 

605 

CITATIONS. 

XIII-S  (Con.) 

xni-12% 

XIV-2  (Con.) 

xvin- 

-1 

61 

103 

137 

524 

129 

441 

66 

633 

73 

623 

2Ap. 

600 

69 

468 

8Ap. 

439 

XIII- 

13 

72 

6 

56 

202 

XV-: 

2 

•80 

213 

xin-9 

83 

402 

132 

106 

102 

117 

56 

102 

XV- 

3 

1  Ap. 

677 

56 

195 

XIV- 

-1 

152 

735 

11  Ap. 

727 

59 

329 

60 

169 

153 

46 

61 

55 

61 

4 

XIX-1 

67 

625 

61 

25 

XVI- 

1 

84 

230 

97 

324 

62 

232 

144 

694 

126 

674 

74 

573 

148 

502 

147 

651 

xm- 

-10 

82 

303 

XVII- 

-1 

56 

201 

90 

640 

111 
156 

11  Ap. 

12  Ap. 

487 
369 
727 
359 

XX-1 

59 

325 

100 

125 

102 

119 

60 
60 
62 

28 

58 

565 

107 
112 

118 

225 
433 
565 

154 
XX-3 

281 

63 

469 

122 

286 

XVII- 

-2 

133 

200 

64 

483 

129 

441 

88 

455 

151 

804 

83 

401 

130 

313 

96 

118 

155 

791 

105 

591 

142 

287 

1  Ap. 

150 

125 

499 

139 

434 

3  Ap. 

245 

XX-4 

128 

593 

144 

593 

1  ' 

80 

234 

137 

515 

150 

89 

XVII 

-3 

85 

416 

137 

660 

151 

57 

55 

103 

110 

451 

142 

223 

152 

588 

65 

13 

143 

432 

152 

729 

68 

508 

XX-5 

148 

317 

157 

89 

71 

321 

93 

400 

149 

84 

2Ap. 

187 

72 

240 

153 

54 

2Ap. 

413 

88 

455 

XX-6 

158 

439 

2  Ap. 

417 

89 

44 

1  Ap. 

U4 

2Ap. 

595 

8  Ap. 

169 

90 

47 

8Ap. 

510 

5Ap. 

648 

96 

318 

14  Ap. 

474 

XIV- 

-2 

146 

543 

XX-8 

61 

38 

148 

496 

147 

515 

XIII 

-12 

62 

108 

148 

714 

104 

63 

62 

233 

158 

616 

XX-9 

135 

517 

82 

304 

1  Ap. 

150 

58 

472 

148 

248 

118 

579 

3Ap. 

244 

113 

139 

CITATIONS. 

6( 

XX-9  (C 

-on.) 

XX-16 

XXII-1 

XXII 

-3 

138 

553 

55 

524 

53 

747 

54 

186 

3Ap. 

747 

66 

655 

54 

247 

54 

346 

XX-10 
154 

281  ■ 

79 

82 

113 
495 

55 
55 

249 
334 

55 
58 

463 
90 

85 

416 

57 

627 

60 

307 

XX-11 

120 
154 

XX-13 

375 

281 

93 

100 

155 
264 

60 
60 

155 
278 

60 
66 

515 
2t)4 

110 
127 
132 

451 
392 
450 

60 
61 
61 

514 

4 

32 

114 

XXII- 
155 

331 

9 
734 

143 

549 

136 

581 

61 

279 

7Ap. 

152 

136 

654 

61 

353 

XXII- 

-10 

138 

16 

67 

382 

55 

611 

XX-15 

145 

471 

69 

467 

56 

99 

61 

353 

157 

483 

69 

485 

57 

626 

89 

111 

lAp. 

7 

71 

312 

60 

307 

98 

151 

6Ap. 

222 

75 

153 

62 

557 

107 

623 

XX-17 

93 

40 

62 

566 

136 

125 

151 

804 

93 

424 

114 

833 

138 

545 

114 

563 

142 

242 

XX-18 

119 

428 

XXII- 

-11 

148 

737 

57 

605 

121 

551 

64 

235 

150 

792 

60 

82 

152 

736 

64 

378 

lAp. 

308 

96 

361 

154 

200 

93 

40 

2Ap. 

507 

98 

556 

154 

339 

103 

491 

3Ap. 

480 

157 

779 

114 

331 

5Ap. 

759 

XX-20 

1  Ap. 

64 

116 

195 

8Ap. 

508 

53 

747 

12  Ap. 

291 

1  Ap. 

574 

8Ap. 

518 

62 

565 

13  Ap. 

624 

10  Ap. 

92 

96 

291 

XXII- 

-12 

13  Ap. 

624 

99 

44 

XXII- 

-2 

56 

99 

14  Ap. 

302 

9  Ap. 

163 

60 

515 

57 

627 

APPENDIX. 

(607) 


CONSTITUTION 

OF  THE 

STATE  OF  CALIFORNIA. 


Adopted  by  the  Convention,  October  10,  1849 ; 

Ratified  by  the  People,  November  13,  18-19 ; 

Proclaimed,  December    20,  1849 ;    and 

Amended  in  1857,  1862,  and  1871. 


PREAMBLE. 

We,  the  people  of  California,  grateful  to  Almighty 
God  for  our  freedom,  in  order  to  secure  its  blessings,  do 
establish  this  constitution. 

ARTICLE  I. 
DECLAEATION    OF   EIGHTS. 

Section  1.  All  men  are  by  nature  free  and  independ- 
ent, and  have  certain  inalienable  rights,  among  which 
are  those  of  enjoying  and  defending  life  and  liberty; 
acquiring,  possessing,  and  protecting  property,  and  pur- 
suing and  obtaining  safety  and  happiness. 

Constitution — 39  (609) 


Art.  I,  §§2-6     CONSTITUTION  OF  1849.  610 

Sec.  2.  All  political  power  is. inherent  in  the  people. 
Grovernment  is  instituted  for  the  protection,  security, 
and  benefit  of  the  people,  and  they  have  the  right  to  alter 
or  reform  the  same  whenever  the  public  good  may  re- 
quire it. 

Sec.  3.  The  right  of  trial  by  jury  shall  be  secured  to 
all,  and  shall  remain  inviolate  forever;  but  a  jury  trial 
may  be  w^aived  by  the  parties,  in  all  civil  cases,  in  the 
manner  to  be  prescribed  by  law. 

Sec.  4.  The  free  exercise  and  enjoyment  of  religious 
profession  and  worship,  without  discrimination  or  pref- 
erence, shall  forever  be  allowed  in  this  state ;  and  no 
person  shall  be  rendered  incompetent  to  be  a  witness  on 
account  of  his  opinions  on  matters  of  religious  belief; 
but  the  liberty  of  conscience  hereby  secured  shall  not  be 
so  construed  as  to  excuse  acts  of  licentiousness,  or  justify 
practices  inconsistent  with  the  peace  or  safety  of  this 
state. 

See.  5.  The  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when,  in  cases  of  rebellion 
or  invasion,  the  public  safety  may  require  its  suspension. 

Sec.  6.  Excessive  bail  shall  not  be  required,  nor  exces- 
sive fines  imposed;  nor  shall  cruel  or  unusual  punish- 
ments be  inflicted;  nor  shaU  witnesses  be  unreasonably 
detained. 


611  CONSTITUTION  OF  1849.     Art.  I,  §§  7-9 

Sec.  7.  All  persons  shall  be  bailable  by  sufficient  sure- 
ties, unless  for  capital  offenses  when  the  proof  is  evident 
or  the  presumption  great. 

Sec.  8.  No  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime  (except  in  cases  of  im- 
peachment, and  in  cases  of  militia  when  in  actual  ser- 
vice, and  the  land  and  naval  forces  in  time  of  war,  or 
w^hich  this  state  may  keep,  with  the  consent  of  Congress, 
in  time  of  peace,  and  in  cases  of  petit  larceny,  under  the 
regulation  of  the  legislature)  unless  on  presentment  or 
indictment  of  a  grand  jury;  and,  in  any  trial  in  any 
court  w^hatever,  the  party  accused  shall  be  allowed  to  ap- 
pear and  defend,  in  person  and  with  counsel,  as  in  civil 
actions.  No  person  shall  be  subject  to  be  twice  put  in 
jeopardy  for  the  same  offense ;  nor  shall  he  be  compelled, 
in  any  criminal  case,  to  be  a  witness  against  himself ;  nor 
be  deprived  of  life,  liberty,  or  property  without  due  pro- 
cess of  law;  nor  shall  private  property  be  taken  for  pub- 
lic use  without  just  compensation. 

See.  9.  Every  citizen  may  freely  speak,  write,  and 
publish  his  sentiments  on  all  subjects,  being  responsible 
for  the  abuse  of  that  right ;  and  no  law  shall  be  passed  to 
restrain  or  abridge  the  liberty  of  speech  or  of  the  press. 
In  all  criminal  prosecutions  on  indictments  for  libels,  the 
truth  may  be  given  in  evidence  to  the  jury;  and  if  it 
shall  appear  to  the  jury  that  the  matter  charged  as  Ii])el- 
ous  is  true,  and  was  published  with  good  motives  and 


Art.  I,  §§  10-16     CONSTITUTION  OF  1840.  612 

for  justifiable  ends,  the  party  shall  be  acquitted;  and 
the  jury  shall  have  the  right  to  determine  the  law  and 
the  fact. 

Sec.  10.  The  people  shall  have  the  right  freely  to 
assemble  together  to  consult  for  the  common  good,  to 
instruct  their  representatives,  and  to  petition  the  legisla- 
ture for  redress  of  grievances. 

Sec.  11.  All  laws  of  a  general  nature  shall  have  a 
uniform  operation. 

Sec.  12.  The  military  shall  be  subordinate  to  the  civil 
power.  No  standing  army  shall  be  kept  up  by  this  state 
in  time  of  peace ;  and,  in  time  of  war,  no  appropriation 
for  a  standing  army  shall  be  for  a  longer  time  than  two 
years. 

Sec.  13.  No  soldier  shall,  in  time  of  peace,  be  quar- 
tered in  any  house  without  the  consent  of  the  owner; 
nor  in  time  of  war,  except  in  the  manner  to  be  prescribed 
by  law. 

Sec.  14.  Representation  shall  be  apportioned  accord- 
ing to  population. 

Sec.  15.  No  person  shall  be  imprisoned  for  debt  in 
any  civil  action,  on  mesne  or  final  process,  unless  in  cases 
of  fraud;  and  no  person  shall  be  imprisoned  for  a 
militia  fine  in  time  of  peace. 

Sec.  16.  No  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts,  shall  ever  be 
passed. 


613  CONSTITUTION  OF  1849.     Art.  I J§  17-22 

Sec.  17.  Foreigners  who  are  or  who  may  hereafter 
become  bona  tide  residents  of  this  state,  shall  enjoy  the 
same  rights  in  respect  to  the  possession,  enjoyment,  and 
inheritance  of  property,  as  native-born  citizens. 

Sec.  18.  Neither  slavery  nor  involuntary  servitude, 
unless  for  the  punishment  of  crime,  shall  ever  be  toler- 
ated in  this  state. 

Sec.  19.  The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers,  and  efiPects,  against  unreasonable 
seizures  and  searches,  shall  not  be  violated ;  and  no  war- 
rant shall  issue,  but  on  probable  cause,  supported  by 
oath  or  affirmation,  particularly  describing  the  place  to 
be  searched  and  the  persons  and  things  to  be  seized. 

Sec.  20.  Treason  against  the  state  shall  consist  only 
in  levying  war  against  it,  adhering  to  its  enemies,  or 
giving  them  aid  and  comfort.  No  person  shall  be  con- 
victed of  treason,  unless  on  the  evidence  of  two  witnesses 
to  the  same  overt  act,  or  confession  in  open  court. 

Sec.  21.  This  enumeration  of  rights  shall  not  be  con- 
strued to  impair  or  deny  others  retained  by  the  people. 

Sec.  22.  The  legislature  shall  have  no  power  to  make 
an  appropriation,  for  any  purpose  whatever,  for  a  longer 
period  than  two  years.  (Added  by  amendment,  ratified 
September  6,  1871.) 


Art.  II,  §§1-3    CONSTITUTION  OF  1849.  614 

ARTICLE  II. 

EIGHT  OF  SUFFRAGE. 

Section  1.  Every  white  male  citizen  of  the  United 
States,  and  every  white  male  citizen  of  Mexico  who  shall 
have  elected  to  become  a  citizen  of  the  United  States, 
under  the  treaty  of  peace  exchanged  and  ratified  at 
Queretaro,  on  the  thirtieth  day  of  May,  eighteen  hundred 
and  forty-eight,  of  the  age  of  twenty-one  years,  who 
shall  have  been  a  resident  of  the  state  six  months  next 
preceding  the  election,  and  the  county  or  district  in 
which  he  claims  his  vote  thirty  days,  shall  be  entitled  to 
vote  at  all  elections  which  are  now  or  hereafter  may 
be  authorized  by  law;  provided,  that  nothing  herein 
contained  shall  be  construed  to  prevent  the  legislature, 
by  a  two-thirds  concurrent  vote,  from  admitting  to  the 
right  of  suffrage  Indians,  or  the  descendants  of  Indians, 
in  such  special  cases  as  such  a  proportion  of  the  legisla- 
tive body  may  deem  just  and  proper. 

Sec.  2.  Electors  shall,  in  all  cases  except  treason, 
felony,  or  breach  of  the  peace,  be  privileged  from  arrest 
on  the  days  of  election,  during  their  attendance  at  such 
election,  going  to  and  returning  therefrom. 

Sec.  3.  No  elector  shall  be  obliged  to  perform  militia 
duty  on  the  day  of  election,  except  in  time  of  war  or 
public  danger. 


615  CONSTITUTION  OF  1849.  Art.  Ill,  §  1 

Sec.  4.  For  the  purpose  of  voting,  no  person  shall  be 
deemed  to  have  gained  or  lost  a  residence  by  reason  of 
his  presence  or  absence  while  employed  in  the  service  of 
the  United  States,  nor  while  engaged  in  the  navigation 
of  the  waters  of  this  state  or  of  the  United  States,  or  of 
the  high  seas ;  nor  while  a  student  at  any  seminary  of 
learning;  nor  while  kept  at  any  almshouse,  or  other 
asylum,  at  public  expense;  nor  while  confined  in  any 
public  prison. 

Sec.  5.  No  idiot  or  insane  person,  or  person  convicted 
of  any  infamous  crime,  shall  be  entitled  to  the  privilege 
of  an  elector. 

Sec.  6.    All  elections  by  the  people  shall  be  by  ballot. 

ARTICLE  III. 

DISTRIBUTION  OF  POWERS. 

Section  1.  The  powers  of  the  government  of  the  state 
of  California  shall  be  divided  into  three  separate  de- 
partments: The  legislative,  the  executive,  and  judicial; 
and  no  person  charged  with  the  exercise  of  powers 
properly  belonging  to  one  of  these  departments  shall 
exercise  any  functions  appertaining  to  either  of  the 
others,  except  in  the  cases  hereinafter  expressly  directed 
or  permitted. 


Art.  IV,  §§1-3     CONSTITUTION  OF  1849.  616 

ARTICLE  IV. 

LEGISLATIVE  DEPARTMENT. 

Section  1.  The  legislative  power  of  this  state  shall  be 
vested  in  a  senate  and  assembly,  which  shall  be  desig- 
nated the  legislature  of  the  state  of  California,  and  the 
enacting  clause  of  every  law  shall  be  as  follows:  "The 
People  of  the  State  of  California,  represented  in  Senate 
and  Assembly,  do  enact  as  follows." 

/  Sec.  2.  The  sessions  of  the  legislature  shall  be  bien- 
nial, and  shall  commence  on  the  first  Monday  of  Decem- 
ber next  ensuing  the  election  of  its  members,  unless  the 
governor  of  the  state  shall,  in  the  interim,  convene  the 
legislature  by  proclamation.  No  session  shall  continue 
longer  than  one  hundred  and  twenty  days.  (Amended 
1862.  The  original  provided  for  annual  sessions,  begin- 
ning on  first  Monday  of  January.) 

Sec.  3.  The  members  of  the  assembly  shall  be  <;hosen 
biennially,  by  the  qualified  electors  of  their  respective 
districts,  on  the  first  Wednesday  in  September,  unless 
otherwise  ordered  by  the  legislature,  and  their  term  of 
office  shall  be  two  years.  (Amendment  ratified  Septem- 
ber 3,  1862.  The  original  provided  for  annual  elections 
on  the  first  Tuesday  after  the  first  Monday  in  Novem- 
ber.) 


617  CONSTITUTION  OF  1849.     Art.  IV,  §§  4r-7 

Sec.  4.  Senators  and  members  of  assembly  shall  be 
duly  qualified)  electors  in  the  respective  counties  and 
districts  which  they  represent. 

Sec,  5.  Senators  shall  be  chosen  for  the  term  of  four 
years,  at  the  same  time  and  places  as  members  of  the 
assembly ;  and  no  person  shall  be  a  member  of  the  senate 
or  assembly  who  has  not  been  a  citizen  and  inhabitant  of 
the  state  and  of  the  county  or  district  for  which  he  shall 
be  chosen  one  j^ear  next  before  his  election.  (Amend- 
ment ratified  September  3,  1862.  Original  made  term 
of  two  years,  and  residence  in  county  or  district  of  six 
months.) 

Sec.  6.  The  number  of  senators  shall  not  be  less  than 
one-third,  nor  more  than  one-half,  of  that  of  the  mem- 
bers of  the  assembly;  and  at  the  first  session  of  the 
legislature  after  this  section  takes  effect,  the  senators 
shall  be  divided  by  lot,  as  equally  as  may  be,  into  two 
classes.  The  seats  of  the  senators  of  the  first  class  shall 
be  vacated  at  the  expiration  of  the  second  year,  so  that 
one-half  shall  be  chosen  biennially.  (Amendment  rati- 
fied September  3,  1862.  Original  provided  for  annual 
election.) 

Sec.  7.  When  the  number  of  senators  is  increased, 
they  shall  be  apportioned  by  lot,  so  as  to  keep  the  two 
classes  as  nearly  equal  in  number  as  possible. 


Art.  IV,  §§  8-13     CONSTITUTION  OF  18-19.  618 

Sec.  8.  Each  house  shall  choose  its  own  officers,  and 
judge  of  the  qualifications,  elections,  and  returns  of  its 
own  members. 

Sec.  9.  A  majority  of  each  house  shall  constitute  a 
quorum  to  do  business;  but  a  smaller  number  may  ad- 
journ from  day  to  day,  and  may  compel  the  attendance 
of  absent  members,  in  such  manner  and  under  such 
penalties  as  each  house  may  provide. 

Sec.  10.  Each  house  shall  determine  the  rules  of  its 
own  proceedings,  and  may,  with  the  concurrence  of  two- 
thirds  of  all  the  members  elected,  expel  a  member. 

Sec.  11.  Each  house  shall  keep  a  journal  of  its  own 
proceedings,  and  publish  the  same ;  and  the  yeas  and 
nays  of  the  members  of  either  house  on  any  question 
shall,  at  the  desire  of  any  three  members  present,  be 
entered  on  the  journal. 

Sec.  12.  Members  of  the  legislature  shall,  in  all  cases 
except  treason,  felony,  and  breach  of  the  peace,  be  privi- 
leged from  arrest,  and  shall  not  be  subject  to  any  civil 
process  during  the  session  of  the  legislature,  nor  for 
fifteen  days  next  before  the  commencement  and  after  the 
termination  of  each  session. 

Sec.  13.  When  vacancies  occur  in  either  house,  the 
governor,  or  the  person  exercising  the  functions  of  the 
governor,  shall  issue  writs  of  election  to  fill  such  vacan- 
cies. 


619  CONSTITUTION  OP  1849.     Art.  IV,  §§  14r-18 

Sec.  14.  The  doors  of  each  house  shall  be  open,  ex- 
cept on  such  occasions  as,  in  the  opinion  of  the  house, 
may  require  secrecy. 

Sec.  15.  Neither  house  shall,  without  the  consent  of 
the  other,  adjourn  for  more  than  three  days,  nor  to  any 
other  place  than  that  in  which  they  may  be  sitting. 

Sec.  16.  Any  bill  may  originate  in  either  house  of  the 
legislature,  and  all  bills  passed  by  one  house  may  be 
amended  in  the  other. 

Sec.  17.  Every  bill  which  may  have  passed  the  legis- 
lature shall,  before  it  becomes  a  law,  be  presented  to  the 
governor.  If  he  approve  it,  he  shall  sign  it,  but  if  not 
he  shall  return  it,  with  his  objections,  to  the  house  in 
which  it  originated,  which  shall  enter  the  same  upon  the 
journal,  and  proceed  to  reconsider  it.  If,  after  such 
reconsideration,  it  again  pass  both  houses  by  yeas  and 
nays,  by  a  majority  of  two-thirds  of  the  members  of 
each  house  present,  it  shall  become  a  law,  notwithstand- 
ing the  governor's  objections.  If  any  bill  shall  not  be 
returned  within  ten  days  after  it  shall  have  been  pre- 
sented to  him  (Sundays  excepted),  the  same  shall  be  a 
law,  in  like  manner  as  if  he  had  signed  it,  unless  the 
legislature,  by  adjournment,  prevent  such  return. 

Sec.  18.  The  assembly  shall  have  the  sole  power  of 
impeachment,  and  all  impeachments  shall  be  tried  by 
the  senate.  When  sitting  for  that  purpose,  the  senators 
shall  be  upon  oath  or  affirmation ;  and  no  person  shall  be 


Art.  IV,  §§  19-21     CONSTITUTION  OF  1849.  620 

convicted  without  the  concurrence  of  two-thirds  of  the 
members  present. 

Sec.  19.  The  governor,  lieutenant-governor,  secretary 
of  state,  controller,  treasurer,  attorney  general,  surveyor 
general,  justices  of  the  supreme  court,  and  judges  of  the 
district  courts,  shall  be  liable  to  impeachment  for  any 
misdemeanor  in  office ;  but  judgment  in  such  cases  shall 
extend  only  to  removal  from  office  and  disqualification  to 
hold  any  office  of  honor,  trust,  or  profit  under  the  state ; 
but  the  party  convicted  or  acquitted  shall,  nevertheless, 
be  liable  to  indictment,  trial,  and  punishment  according 
to  law.  All  other  civil  officers  shall  be  tried  for  misde- 
meanors in  office  in  such  a  manner  as  the  legislature  may 
provide. 

Sec.  20.  No  senator  or  member  of  assembly  shall, 
during  the  term  for  which  he  shall  have  been  elected, 
be  appointed  to  any  civil  office  of  profit  under  this  state 
which  shall  have  been  created  or  the  emoluments  of 
which  shall  have  been  increased  during  such  term,  except 
such  offices  as  may  be  filled  by  election  by  the  people. 

Sec.  21.  No  person  holding  any  lucrative  office  under 
the  United  States,  or  any  other  power,  shall  be  eligible 
to  any  civil  office  of  profit  under  this  state;  provided, 
that  officers  in  the  militia  to  which  there  is  attached  no 
annual  salary,  or  local  officers  and  postmasters,  whose 
compensation  does  not  exceed  five  hundred  dollars  per 
annum,  shall  not  be  deemed  lucrative. 


621  CONSTITUTION  OF  1849.     Art.  IV,  §§22-27 

Sec.  22.  No  person  who  shall  be  convicted  of  the 
embezzlement  or  defalcation  of  the  public  funds  of  this 
state  shall  ever  be  eligible  to  any  office  of  honor,  trust, 
or  profit  under  this  state;  and  the  legislature  shall,  as 
soon  as  practicable,  pass  a  law  providing  for  the  punish- 
ment of  such  embezzlement  or  defalcation  as  a  felony. 

Sec.  23.  No  money  shall  be  drawn  from  the  treasury 
but  in  consequence  of  appropriations  made  by  law.  An 
accurate  statement  of  the  receipts  and  expenditures  of 
the  public  moneys  shall  be  attached  to  and  published 
with  the  laws  at  every  regular  session  of  the  legislature. 

Sec.  24.  The  members  of  the  legislature  shall  receive 
for  their  services  a  compensation  to  be  fixed  by  law,  and 
paid  out  of  the  public  treasury;  but  no  increase  of  the 
compensation  shall  take  effect  during  the  term  for  which 
the  members  of  either  house  shall  have  been  elected. 

Sec.  25.  Every  law  enacted  by  the  legislature  shall 
embrace  but  one  object,  and  that  shall  be  expressed  in 
the  title;  and  no  law  shall  be  revised  or  amended  by 
reference  to  its  title ;  but  in  such  case  the  act  revised  or 
section  amended  shall  be  re-enacted  and  published  af 
length. 

Sec.  26.  No  divorce  shall  be  granted  by  the  legisla- 
ture. 

Sec.  27.  No  lottery  shall  be  authorized  by  this  state, 
nor  shall  the  sale  of  lottery  tickets  be  allowed. 


Art.  IV,  §§  28-30    constitution  of  1849. '  622 

See.  28.  The  enumeration  of  the  inhabitants  of  this 
state  shall  be  taken,  under  the  direction  of  the  legisla- 
ture, in  the  year  one  thousand  eight  hundred  and  fifty- 
two  and  one  thousand  eight  hundred  and  fifty-five,  and 
at  the  end  of  every  ten  years  thereafter;  and  these 
enumerations,  together  with  the  census  that  may  be  taken 
under  the  direction  of  the  Congress  of  the  United  States, 
in  the  year  one  thousand  eight  hundred  and  fifty  and 
every  subsequent  ten  years,  shall  serve  as  the  basis  of 
representation  in  both  houses  of  the  legislature. 

Sec.  29.  The  number  of  senators  and  members  of 
assembly  shall,  at  the  first  session  of  the  legislature 
holden  after  the  enumerations  herein  provided  for  are 
made,  be  fixed  by  the  legislature,  and  apportioned  among 
the  several  counties  and  districts  to  be  established  by 
law,  according  to  the  number  of  white  inhabitants.  The 
number  of  members  of  assembly  shall  not  be  less  than 
twenty-four,  noi-  more  than  thirty-six,  until  the  number 
of  inhabitants  within  this  state  shall  amount  to  one 
hundred  thousand ;  and,  after  that  period,  in  such  ratio 
that  the  whole  number  of  members  of  assembly  shall 
never  be  less  than  thirty  nor  more  than  eighty. 

See.  30.  When  a  congressional,  senatorial,  or  assem- 
bly district  shall  be  composed  of  two  or  more  counties, 
it  shall  not  be  separated  by  any  county  belonging  to 
another  district.  No  county  shall  be  divided  in  forming 
a  congressional,  senatorial,  or  assembly  district  *so  as  to 


623  Constitution  op  1849.    Art.  IV,  §§  31-34 

attach  one  portion  of  a  county  to  another  county;  but 
tlie  legislature  may  divide  each  county  into  as  many 
congressional,  senatorial,  or  assembly  districts  as  such 
county  may  by  apportionment  be  entitled  to.  (Words 
following  the  *  were  added  by  amendment  ratified  Sep- 
tember 3,  1862.) 

Sec.  31.  Corporations  may  be  formed  under  general 
laws,  but  shall  not  be  created  by  special  act,  except  for 
municipal  purposes.  All  general  laws  and  special  acts 
passed  pursuant  to  this  section  may  be  altered  from  time 
to  time,  or  repealed. 

See.  32.  Dues  from  corporations  shall  be  secured  by 
such  individual  liability  of  the  corporators  and  other 
means  as  may  be  prescribed  by  law. 

Sec.  33.  The  term  corporations,  as  used  in  this 
article,  shall  be  construed  to  include  all  associations  and 
joint-stock  companies  having  any  of  the  powers  or 
privileges  of  corporations  not  possessed  by  individuals 
or  partnerships.  And  all  corporations  shall  have  the 
right  to  sue  and  shall  be  subject  to  be  sued  in  all  courts, 
in  like  cases  as  natural  persons. 

Sec.  34.  The  legislature  shall  have  no  power  to  pass 
any  act  granting  any  charter  for  banking  purposes,  but 
associations  may  be  formed,  under  general  laws,  for  the 
deposit  of  gold  and  silver;  but  no  such  associations  shall 
make,  issue,  or  put  in  circulation  any  bill,  check,  ticket, 


Art.  IV,  §§  35-39     constitution  of  1849.  624 

certificate,  promissory  note,  or  other  paper,  or  the  paper 
of  any  bank,  to  circulate  as  money. 

See.  35.  The  legislature  of  this  state  shall  prohibit 
by  law  any  person  or  persons,  association,  company,  or 
corporation  from  exercising  the  privileges  of  banking 
or  creating  paper  to  circulate  as  money. 

Sec.  36.  Each  stockholder  of  a  corporation  or  joint- 
stock  association  shall  be  individually  and  personally 
liable  for  his  proportion  of  all  its  debts  and  liabilities. 

Sec.  37.  It  shall  be  the  duty  of  the  legislature  to 
provide  for  the  organization  of  cities  and  incorporated 
villages,  and  to  restrict  their  power  of  taxation,  assess- 
ment, borrowing  money,  contracting  debts,  and  loaning 
their  credit,  so  as  to  prevent  abuses  in  assessments  and  in 
contracting  debts  by  such  municipal  corporations. 

Sec.  38.  In  all  elections  by  the  legislature  the  mem- 
bers thereof  shall  vote  viva  voce,  and  the  votes  shall  be 
entered  on  the  journal. 

Sec.  39.  In  order  that  no  inconvenience  may  result 
to  the  public  service  from  the  taking  effect  of  the  amend- 
ments proposed  to  article  4  by  the  legislature  of  eighteen 
hundred  and  sixty-one,  no  officer  shall  be  suspended  or 
superseded  thereby  until  the  election  and  qualification 
of  the  several  officers  provided  for  in  said  amendments. 
(New  section  ratified  September  3,  1862.) 


625  CONSTITUTION  OF  1849.      Art.  V,  §§1-4 

ARTICLE    V. 

EXECUTIVE  DEPAETMENT. 

Section  1.  The  supreme  executive  power  of  this 
state  shall  be  vested  in  a  chief  magistrate,  who  shall  be 
styled  the  Governor  of  the  State  of  California. 

Sec.  2.  The  governor  shall  be  elected  by  the  qualified 
electors,  at  the  time  and  places  of  voting  for  members  of 
the  assembly,  and  shall  hold  his  office  four  years  from 
and  after  the  first  Monday  in  December  subsequent  to 
his  election,  and  until  his  successor  is  elected  and  quali- 
fied. (Amendment  ratified  September  3,  1862.  Orig- 
inal provided  for  term  of  two  years.) 

Sec.  3.  No  person  shall  be  eligible  to  the  office  of 
governor  (except  at  the  first  election)  who  has  not  been 
a  citizen  of  the  United  States  and  a  resident  of  this  state 
two  years  next  preceding  the  election,  and  attained  the 
age  of  twenty-five  years  at  the  time  of  said  election. 

Sec.  4.  The  returns  of  every  election  for  governor 
shall  be  sealed  up  and  transmitted  to  the  seat  of  govern- 
ment, directed  to  the  speaker  of  the  assembly,  who  shall, 
during  the  first  week  of  the  session,  open  and  publish 
them  in  presence  of  both  houses  of  the  legislature.  The 
person  having  the  highest  number  of  votes  shall  be  gov- 
ernor; but,  in  case  any  two  or  more  have  an  equal  and 
the  highest  number  of  votes,  the  legislature  shall,  by 

Constitution — 40 


Art.  V,§§  5-11    CONSTITUTION  OF  1849.  626 

joint  vote  of  both  houses,  choose  one  of  said  persons  so 
having  an  equal  and  the  highest  number  of  votes,  for 
governor. 

Sec.  5.  The  governor  shall  be  commander  in  chief 
of  the  militia,  the  army,  and  navy  of  this  state. 

Sec.  6.  He  shall  transact  all  executive  business  with 
the  officers  of  government,  civil  and  military,  and  may 
require  information  in  writing  from  the  officers  of  the 
executive  department,  upon  any  subject  relating  to  the 
duties  of  their  respective  offices. 

Sec.  7.  He  shall  see  that  the  laws  are  faithfully  exe- 
cuted. 

Sec.  8.  When  any  office  shall,  from  any  cause,  become 
vacant,  and  no  mode  is  provided  by  the  constitution 
and  law  for  filling  such  vacancy,  the  governor  shall  have 
power  to  fill  such  vacancy  by  granting  a  commission, 
which  shall  expire  at  the  end  of  the  next  session  of  the 
legislature,  or  at  the  next  election  by  the  people. 

Sec.  9.  He  may,  on  extraordinary  occasions,  con- 
vene the  legislature  by  proclamation,  and  shall  state  to 
both  houses,  when  assembled,  the  purpose  for  which  they 
shall  have  been  convened. 

Sec.  10.  He  shall  communicate  by  message  to  the 
legislature,  at  every  session,  the  condition  of  the  state, 
and  recommend  such  matters  as  he  shall  deem  expedient 

Sec.  11.  In  case  of  a  disagreement  between  the  two 
houses  with  respect  to  the  time  of  adjournment,  the  gov- 


627  CONSTITUTION  OF  1849.    Art.  V,  §§12-14 

ernor  shall  have  power  to  adjourn  the  legislature  to 
such  time  as  he  may  think  proper;  provided,  it  be  not 
beyond  the  time  fixed  for  the  meeting  of  the  next  legis- 
lature. 

See.  12.  No  person  shall,  while  holding  any  office 
under  the  United  States,  or  this  state,  exercise  the  office 
of  governor,  except  as  hereinafter  expressly  provided. 

See.  13.  The  governor  shall  have  the  power  to  grant 
reprieves  and  pardons  after  conviction,  for  all  offenses, 
except  treason  and  cases  of  impeachment,  upon  such  con- 
ditions and  with  such  restrictions  and  limitations  as  he 
may  think  proper,  subject  to  such  regulations  as  may  be 
provided  by  law  relative  to  the  manner  of  applying  for 
pardons.  Upon  conviction  for  treason,  he  shall  have  the 
power  to  suspend  the  execution  of  the  sentence  until  the 
ease  shall  be  reported  to  the  legislature  at  its  next  meet- 
ing, when  the  legislature  shall  either  pardon,  direct  the 
execution  of  the  sentence,  or  grant  a  further  reprieve. 
He  shall  communicate  to  the  legislature,  at  the  beginning 
of  every  session,  every  case  of  reprieve  or  pardon 
granted,  stating  the  name  of  the  convict,  the  crime  of 
which  he  was  convicted,  the  sentence  and  its  date,  and 
the  date  of  the  pardon  or  reprieve. 

Sec.  14.  There  shall  be  a  seal  of  this  state,  which 
shall  be  kept  by  the  governor,  and  used  by  him  officially 
and  shall  be  called  "The  Great  Seal  of  the  State  of  Cali- 
fornia." 


Art.  V,  §§  15-17     CONSTITUTION  OF  1849.  628 

Sec.  15.  All  grants  and  commissions  shall  be  in  the 
name  and  by  the  authority  of  the  people  of  the  state  of 
California,  sealed  with  the  great  seal  of  the  sta-te,  signed 
by  the  governor,  and  countersigned  by  the  secretary  of 
state. 

Sec.  16.  A  lieutenant-governor  shall  be  elected  at  the 
same  time  and  places,  and  in  the  same  manner  as  the 
governor;  and  his  term  of  office,  and  his  qualifications 
of  eligibility,  shall  also  be  the  same.  He  shall  be  presi- 
dent of  the  senate,  but  shall  only  have  a  casting  vote 
therein.  If,  during  a  vacancy  of  the  office  of  governor, 
the  lieutenant-governor  shall  be  impeached,  displaced, 
rc'siyn,  die,  or  become  incapable  of  performing  the  duties 
of  his  office,  or  be  absent  from  the  state,  the  president 
of  the  senate  shall  act  as  governor  until  the  vacancy  be 
filled  or  the  disability  shall  cease. 

Sec.  17.  In  case  of  the  impeachment  of  the  governor, 
or  his  removal  from  office,  death,  inability  to  discharge 
the  powers  and  duties  of  the  said  office,  resignation,  or 
absence  from  the  state,  the  powers  and  duties  of  the 
office  shall  devolve  upon  the  lieutenant-governor  for  the 
residue  of  the  term,  or  until  the  disability  shall  cease. 
But  when  the  governor  shall,  with  the  consent  of  the 
legislature,  be  out  of  the  state  in  time  of  war,  at  the 
bead  of  any  military  force  thereof,  he  shall  continue 
commander  in  chief  of  all  the  military  force  of  the  state. 


G29  CONSTITUTION  OF  1849.     Art.  V,  §§  18, 19 

Sec.  18.  A  secretary  of  state,  a  controller,  a  treas- 
urer, an  attorney  general,  and  a  surveyor  general  shall 
be  elected  at  the  same  time  and  places,  and  in  the  same 
manner  as  the  governor  and  lieutenant-governor,  and 
whose  term  of  office  shall  be  the  same  as  the  governor. 
(Amendment  ratified  September  3,  1862.) 

/  [ORIGINAL  SECTION.] 

/  Sec.  18.  A  secretary  of  state,  a  controller,  a  treasurer,  an 
/  attorney  general  and  surveyor  general  shall  be  chosen  in  the 
/  manner  provided  in  this  constitution;  and  the  term  of  office  and 

eligibility  of  each  shall  be  the  same  as  are  prescribed  for  the 
V  governor  and  lieutenant-governor. 

See.  19.  The  secretary  of  state  shall  keep  a  fair 
record  of  the  official  acts  of  the  legislative  and  executive 
departments  of  the  government,  and  shall,  when  re- 
quired, lay  the  same,  and  all  matters  relative  thereto, 
before  either  branch  of  the  legislature,  and  shall  perform 
such  other  duties  as  may  be  assigned  him  by  law;  and  in 
order  that  no  inconvenience  may  result  to  the  public 
service  from  the  taking  effect  of  the  amendments  pro- 
posed to  said  article  5  by  the  legislature  of  eighteen 
hundred  and  sixty-one,  no  officer  shall  be  superseded  or 
suspended  thereby,  until  the  election  and  qualification  of 
the  several  officers  provided  for  in  said  amendments. 
(Amendment  ratified  September  3,  1862.  Original  pro- 
vided for  appointment  of  secretary  of  state  by  the  gov- 
ernor.) 


Art.  VI,  §§1,2     CONSTITUTION  OF  1849.  630 

Sec.  20.  The  controller,  treasurer,  attorney  general, 
and  surveyor  general,  shall  be  chosen  by  joint  vote  of  the 
two  houses  of  the  legislature  at  their  first  session  under 
this  constitution,  and  thereafter  shall  be  elected  at  the 
same  time  and  places,  and  in  the  same  manner,  as  the 
governor  and  lieutenant-governor. 

Sec.  21.  The  governor,  lieutenant-governor,  secretary 
of  state,  controller,  treasurer,  attorney  general,  and  sur- 
veyor general,  shall  each,  at  stated  times  during  their 
continuance  in  office,  receive  for  their  services  a  compen- 
sation, which  shall  not  be  increased  or  diminished  during 
the  term  for  which  they  shall  have  been  elected;  but 
neither  of  these  officers  shall  receive  for  his  own  use  any 
fees  for  the  performance  of  his  official  duties. 

ARTICLE  VI. 

[Before  it  was  revised  by  amendments  ratified  Septem- 
ber 3,  1862.     For  revision,  see  page  634.] 
JUDICIAL  DEPARTMENT. 

Section  1.  The  judicial  power  of  this  state  shall  be 
vested  in  a  supreme  court,  in  district  courts,  in  county 
courts  and  in  justices  of  the  peace.  The  legislature 
may  also  establish  such  municipal  and  other  inferior 
courts  as  may  be  deemed  necessary. 

Sec.  2,  The  supreme  court  shall  consist  of  a  chief 
justice  and  two  associate  justices,  any  two  of  whom 
shall  constitute  a  quorum. 


631  CONSTITUTION  OF  1849.    Art.  VI,  §§3-5 

Sec.  3.  The  justices  of  the  supreme  court  shall  be 
elected  at  the  general  election,  by  the  qualified  electors 
of  the  state,  and  shall  hold  their  office  for  the  term  of 
six  years  from  the  first  day  of  January,  next  after  their 
election ;  provided,  that  the  legislature  shall,  at  its  first 
meeting,  elect  a  chief  justice  and  two  associate  justices 
of  the  supreme  court,  by  joint  vote  of  both  houses,  and 
so  classify  them  that  one  shall  go  out  of  office  every  two 
years.  After  the  first  election,  the  senior  justice  in 
commission  shall  be  the  chief  justice. 

Sec.  4.  The  supreme  court  shall  have  appellate  juris- 
diction in  all  cases  when  the  matter  in  dispute  exceeds 
two  hundred  dollars,  when  the  legality  of  any  tax,  toll, 
or  impost,  or  municipal  fine  is  in  question,  and  in  all 
criminal  cases  amounting  to  felony,  on  questions  of  law 
alone.  And  the  said  court,  and  each  of  the  justices 
thereof,  as  well  as  all  district  and  county  judges,  shall 
have  power  to  issue  writs  of  habeas  corpus  at  the  instance 
of  any  person  held  in  actual  custody.  They  shall  also 
have  power  to  issue  all  other  writs  and  process  necessary 
to  the  exercise  of  their  appellate  jurisdiction  and  shall  be 
conservators  of  the  peace  throughout  the  state. 

Sec.  5.  The  state  shall  be  divided  by  the  first  legis- 
lature into  a  convenient  number  of  districts,  subject  to 
such  alteration  from  time  to  time  as  the  public  good  may 
require,  for  each  of  which  a  district  judge  shall  be  ap- 
pointed by  the  joint  vote  of  the  legislature,  at  its  first 


Art.  VI,  §§6-8     CONSTITUTION  OP  1849.  632 

meeting,  who  shall  hold  his  office  for  two  years  from  the 
first  day  of  January  next  after  his  election ;  after  which 
said  judges  shall  be  elected  by  the  qualified  electors  of 
their  respective  districts,  at  the  general  election,  and 
shall  hold  their  office  for  the  term  of  six  years. 

See.  6.  The  district  courts  shall  have  original  juris- 
diction, in  law  and  equity,  in  all  civil  cases  where  the 
amount  in  dispute  exceeds  two  hundred  dollars,  exclusive 
of  interest.  In  all  criminal  cases  not  otherwise  pro- 
vided for,  and  in  all  issues  of  fact  joined  in  the  probate 
courts,  their  jurisdiction  shall  be  unlimited. 

Sec.  7.  The  legislature  shall  provide  for  the  election, 
by  the  people,  of  a  clerk  of  the  supreme  court,  and 
county  clerks,  district  attorneys,  sheriffs,  coroners  and 
other  necessary  officers ;  and  shall  fix  by  law  their  duties 
and  compensation.  County  clerks  shall  be  ex  officio 
clerks  of  the  district  courts  in  and  for  their  respective 
counties. 

Sec.  8.  There  shall  be  elected  in  each  of  the  organ- 
ized counties  of  this  state  one  county  judge,  who  shall 
hold  his  office  for  four  years.  He  shall  hold  the  county 
court  and  perform  the  duties  of  surrogate  or  probate 
judge.  The  county  judge,  with  two  justices  of  the 
peace,  to  be  designated  according  to  law,  shall  hold 
courts  of  sessions,  with  such  criminal  jurisdiction  as  the 
legislature  shall  prescribe,  and  he  shall  perform  such 
other  duties  as  shall  be  required  by  law. 


633  CONSTITUTION  OP  1849.    Art.  VI,  §§9-14 

See.  9.  The  county  courts  shall  have  such  jurisdic- 
tion, in  cases  arising  in  justices'  courts,  and  in  special 
cases,  as  the  legislature  may  prescribe,  but  shall  have  no 
original  civil  jurisdiction,  except  in  such  special  cases. 

Sec.  10.  The  times  and  places  of  holding  the  terms 
of  the  supreme  court,  and  the  general  and  special  terms 
of  the  district  courts  within  the  several  districts,  shall  be 
provided  for  by  law. 

Sec.  11.  No  judicial  officer,  except  a  justice  of  the 
peace,  shall  receive  to  his  own  use,  any  fees  or  perquisites 
of  office. 

Sec.  12.  The  legislature  shall  provide  for  the  speedy 
publication  of  all  statute  laws,  and  of  such  judicial  de- 
cisions as  it  may  deem  expedient;  and  all  laws  and 
judicial  decisions  shall  be  free  for  publication  by  any 
person. 

Sec.  13.  Tribunals  for  conciliation  may  be  estab- 
lished with  such  powers  and  duties  as  may  be  prescribed 
by  law ;  but  such  tribunals  shall  have  no  power  to  render 
judgment  to  be  obligatory  on  the  parties,  except  they 
voluntarily  submit  their  matters  in  difference,  and 
agree  to  abide  the  judgment,  or  assent  thereto  in  the 
presence  of  such  tribunal,  in  such  cases  as  shall  be  pre- 
scribed by  law. 

Sec.  14,  The  legislature  shall  determine  the  number 
of  justices  of  the  peace  to  be  elected  in  each  county,  city, 
town,  and  incorporated  village  of  the  state,  and  fix  by  law 


Art.  VI,  §§  1,  2    CONSTITUTION  OP  1849.  634 

their  powers,  duties  and  responsibilities.  It  sliall  also 
determine  in  what  cases  appeals  may  be  made  from 
justices'  courts  to  the  county  court. 

Sec.  15.  The  justices  of  the  supreme  court  and 
judges  of  the  district  courts  shall  severally,  at  stated 
times  during  their  continuance  in  office,  receive  for  their 
services  a  compensation  to  be  paid  out  of  the  treasury. 

Sec.  16.  The  justices  of  the  supreme  court  and  dis- 
trict judges  shall  be  ineligible  to  any  other  office  during 
the  term  for  which  they  shall  have  been  elected. 

Sec.  17.  Judges  shall  not  charge  juries  with  respect 
to  matters  of  fact,  but  may  state  the  testimony  and  de- 
clare the  law. 

ARTICLE  VI. 

[As  revised  by  amendments  ratified  September  3, 
1862.] 

JUDICIAL  DEPAETMENT. 

Section  1.  The  judicial  power  of  this  state  shall  be 
vested  in  a  supreme  court,  in  district  courts,  in  county 
courts,  in  probate  courts,  and  in  justices  of  the  peace, 
and  in  such  recorders'  and  other  inferior  courts  as  the 
legislature  may  establish  in  any  incorporated  city  or 
town.     (1862.) 

Sec.  2.  The  supreme  court  shall  consist  of  a  chief 
justice  and  four  associate  justices.  The  presence  of 
three  justices  shall  be  necessary  for  the  transaction  of 
business,   excepting  such   business   as  may  be  done  at 


635  CONSTITUTION  OF  1849.     Art.  VI,  §§3,  t 

chambers,  and  the  concurrence  of  three  justices  shall  be 
necessary  to  pronounce  a  judgment.     (1862.) 

Sec.  3.  The  justices  of  the  supreme  court  shall  be 
elected  by  the  qualified  electors  of  the  state  at  special 
elections  to  be  provided  by  law,  at  which  elections  no 
officer  other  than  judicial  shall  be  elected,  except  a  su- 
perintendent of  public  instruction.  The  first  election 
for  justices  of  the  supreme  court  shall  be  held  in  the 
year  eighteen  hundred  and  sixty-three.  The  justices 
shall  hold  their  offices  for  the  term  of  ten  years  from  the 
first  day  of  January  next  after  their  election,  except 
those  elected  at  the  first  election,  who,  at  their  first  meet- 
ing, shall  so  classify  themselves  by  lot  that  one  justice 
shall  go  out  of  office  every  two  years.  The  justice  hav- 
ing the  shortest  term  to  serve  shall  be  the  chief  justice. 
(1862.) 

Sec.  4.  The  supreme  court  shall  have  appellate  ju- 
risdiction in  all  cases  in  equity;  also  in  all  cases  at  law 
which  involve  the  title  or  possession  of  real  estate,  or 
the  legality  of  any  tax,  impost,  assessment,  toll,  or  mu- 
nicipal fine,  or  in  which  the  demand,  exclusive  of  interest 
or  the  value  of  the  property  in  controversy,  amounts  to 
three  hundred  dollars ;  also  in  all  cases  arising  in  the 
probate  courts;  and  also  in  all  criminal  cases  amounting 
to  felony,  on  questions  of  law  alone.  The  court  shall 
also  have  power  to  issue  writs  of  mandamus,  certiorari, 
prohibition,  and  habeas  corpus,  and  also  all  writs  neces- 


Art.  VI,  §§5,  6     CONSTITUTION  OP  1849.  636 

sary  or  proper  to  the  complete  exercise  of  its  appellate 
.iiirisdiction.  Each  of  the  justices  shall  have  power  to 
issue  writs  of  habeas  corpus  to  any  part  of  the  state, 
upon  petition  on  behalf  of  any  person  held  in  actual  cus- 
tody, and  make  such  writs  returnable  before  himself,  or 
the  supreme  court,  or  before  any  district  court,  or  an}' 
county  court  in  the  state,  or  before  any  judge  of  said 
courts.     (1862.) 

Sec.  5.  The  state  shall  be  divided,  by  the  legislature 
of  eighteen  hundred  and  sixty-three,  into  fourteen  judi- 
cial districts,  subject  to  such  alteration,  from  time  to 
time,  by  a  two-thirds  vote  of  all  the  members  elected  to 
both  houses,  as  the  public  good  may  require,  in  each  of 
w^hich  there  shall  be  a  district  court,  and  for  each  of 
which  a  judge  shall  be  elected  by  the  qualified  electors 
of  the  district  at  the  special  judicial  elections  to  be  held 
as  provided  for  the  election  of  justices  of  the  supreme 
court,  by  section  three  of  this  article.  The  district 
judges  shall  hold  their  offices  for  the  term  of  six  years 
from  the  first  day  of  January  next  after  their  election. 
The  legislature  shall  have  no  power  to  grant  leave  of  ab- 
sence to  a  judicial  officer ;  and  any  such  officer  who  shall 
absent  himself  from  the  state  for  upward  of  thirty  con- 
secutive days  shall  be  deemed  to  have  forfeited  his  of- 
fice.    (1862.) 

Sec.  6.  The  district  courts  shall  have  original  juris- 
diction in  all  cases  in  equity;  also,  in  all  cases  at  law 


637  CONSTITUTION  OF  1849.     Art.  YI,  §§7,  8 

which  involve  the  title  or  possession  of  real  property, 
or  the  legality  of  any  tax,  impost,  assessment,  toll,  or 
municipal  fine,  and  in  all  other  cases  in  which  the  de- 
mand, exclusive  of  interest  or  the  value  of  the  property 
in  controversy,  amounts  to  three  hundred  dollars;  and 
also  in  all  criminal  cases  not  otherwise  provided  for. 
The  district  courts  and  their  judges  shall  have  power  to 
issue  writs  of  habeas  corpus,  on  petition  by  or  on  behalf 
of  any  person  held  in  actual  custody,  in  their  respective 
districts.     (1862.) 

Sec.  7.  There  shall  be  in  each  of  the  organized  coun- 
ties of  the  state  a  county  court,  for  each  of  which  a 
county  judge  shall  be  elected  by  the  qualified  electors  of 
the  county,  at  the  special  judicial  election  to  be  held  as 
provided  for  the  election  of  justices  of  the  supreme  court 
by  section  three  of  this  article.  The  county  judges  shall 
hold  their  offices  for  the  term  of  four  years  from  the 
first  day  of  January  next  after  their  election.  Said 
courts  shall  also  have  power  to  issue  naturalization  pa- 
pers. In  the  city  and  county  of  San  Francisco  the  leg- 
islature may  separate  the  office  of  probate  judge  from 
that  of  county  judge,  and  may  provide  for  the  election 
of  a  probate  judge,  who  shall  hold  his  office  for  the  term 
of  four  years.     (1862.) 

Sec.  8.  The  county  court  shall  have  original  jurisdic- 
tion of  actions  of  forcible  entry  and  detainer,  of  pro- 
ceedings in  insolvency,  of  actions  to  prevent  or  abate  a 


Art.  VI,  §§  9, 10    CONSTITUTION  OF  1849.  638 

nuisance,  and  of  all  such  special  cases  and  proceedings 
as  are  not  otherwise  provided  for;  and  also  such  crimi- 
nal jurisdiction  as  the  legislature  may  prescribe;  they 
shall  also  have  appellate  jurisdiction  in  all  cases  arising 
in  courts  held  by  justices  of  the  peace  and  recorders, 
and  in  such  inferior  courts  as  may  be  established  in  pur- 
suance of  section  one  of  this  article,  in  their  respective 
counties.  The  county  judges  shall  also  hold,  in  their 
several  counties,  probate  court,  and  perform  such  duties 
as  probate  judges  as  may  be  prescribed  by  law.  The 
county  courts  and  their  judges  shall  also  have  power  to 
issue  writs  of  habeas  corpus,  on  petition  by  or  on  behalf 
of  any  person  in  actual  custody  in  their  respective  coun- 
ties.    (1862.) 

Sec.  9.  The  legislature  shall  determine  the  number  of 
justices  of  the  peace  to  be  elected  in  each  city  and  town- 
ship of  the  state,  and  fix  by  law  their  powers,  duties,  and 
responsibilities ;  provided,  such  powers  shall  not  in  any 
case  trench  upon  the  jurisdiction  of  the  several  courts 
of  record.  The  supreme  court,  the  district  courts, 
county  courts,  the  probate  courts,  and  such  other  courts 
as  the  legislature  shall  prescribe,  shall  be  courts  of  rec- 
ord.    (1862.) 

Sec.  10.  The  legislature  shall  fix  by  law  the  jurisdic- 
tion of  any  recorder's  or  other  inferior  municipal  court 
which  may  be  established  in  pursuance  of  section  one  of 


639  CONSTITUTION  OF  1849.     Art.  VI,  §§  11-14 

this  article,  and  shall  fix  by  law  the  powers,  duties,  and 
responsibilities  of  the  judges  thereof.     (1862.) 

Sec.  11.  The  legislature  shall  provide  for  the  election 
of  a  clerk  of  the  supreme  court,  county  clerks,  district 
attorneys,  sheriffs,  and  other  necessary  officers,  and  shall 
fix  by  law  their  duties  and  compensation.  County 
clerks  shall  be  ex  officio  clerks  of  the  courts  of  record  in 
and  for  their  respective  counties.  The  legislature  may 
also  provide  for  the  appointment  by  the  several  district 
courts  of  one  or  more  commissioners  in  the  several 
counties  of  their  respective  districts,  with  authority  to 
perform  chamber  business  of  the  judges  of  the  district 
courts  and  county  courts,  and  also  to  take  depositions, 
and  to  perform  such  other  business  connected  with  the 
administration  of  justice  as  may  be  prescribed  by  law. 
(1862.) 

Sec.  12.  The  times  and  places  of  holding  the  terms  of 
the  several  courts  of  record  shall  be  provided  for  by 
law.     (1862.) 

Sec.  13.  No  judicial  officer,  except  justices  of  the 
peace,  recorders,  and  commissioners  shall  receive  to  his 
own  use  any  fees  or  perquisites  of  office.     (1862.) 

Sec.  14.  The  legislature  shall  provide  for  the  speedy 
publication  of  such  opinions  of  the  supreme  court  as  it 
may  deem  expedient ;  and  all  opinions  shall  be  free  for 
publication  by  any  person.     (1862.) 


Art.  VI,  §§  15-19     CONSTITUTION  OP  1849.  640 

Sec.  15.  The  justices  of  the  supreme  court,  district 
judges,  and  county  judges,  shall  severally,  at  stated 
times  during  their  continuance  in  office,  receive  for  their 
services  a  compensation,  which  shall  not  be  increased  or 
diminished,  during  the  term  for  which  they  shall  have 
been  elected ;  provided,  that  county  judges  shall  be  paid 
out  of  the  county  treasury  of  their  respective  counties. 
(1862.) 

Sec.  16.  The  justices  of  the  supreme  court,  and  the 
district  judges,  and  the  county  judges,  shall  be  ineligible 
to  any  other  office  than  a  judicial  office  during  the  term 
for  which  they  shall  have  been  elected.     (1862.) 

Sec.  17.  Judges  shall  not  charge  juries  with  respect 
to  matters  of  fact,  but  may  state  the  testimony  and  de- 
clare the  law.     (1862.) 

Sec.  18.  The  style  of  all  process  shall  be:  "The 
People  of  the  State  of  California,"  and  all  prosecutions 
shall  be  conducted  in  their  name  and  by  their  authority. 
(1862.) 

Sec.  19.  In  order  that  no  inconvenience  may  result 
to  the  public  service  from  the  taking  effect  of  the  amend- 
ments proposed  to  said  article  6,  by  the  legislature  of 
eighteen  hundred  and  sixty-one,  no  officer  shall  be  su- 
perseded thereby,  nor  shall  the  organization  of  the  sev- 
eral courts  be  changed  thereby,  until  the  election  and 
qualification  of  the  several  officers  provided  for  in  said 
amendment.     (1862.) 


641  CONSTITUTION  OF  1849.      Art.  VIII,  §  1 

ARTICLE  VII. 

MILITIA. 

Section  1,  The  lecrislature  shall  provide  by  law  for 
organizing  and  disciplining  the  militia,  in  such  manner 
as  they  shall  deem  expedient,  not  incompatible  with  the 
constitution  and  laws  of  the  United  States. 

Sec.  2.  Officers  of  the  militia  shall  be  elected  or  ap- 
pointed in  such  manner  as  the  legislature  shall  from  time 
to  time  direct,  and  shall  be  commissioned  by  the  gov- 
ernor. 

See.  3.  The  governor  shall  have  power  to  call  forth 
the  militia  to  execute  the  laws  of  the  state,  to  suppress 
insurrections,  and  repel  invasions. 

ARTICLE  VIIL 

STATE  DEBTS. 

Section  1.  The  legislature  shall  not  in  any  manner 
create  any  debt  or  debts,  liability  or  liabilities,  which 
shall,  singly  or  in  the  aggregate  with  any  previous  debts 
or  liabilities,  exceed  the  sum  of  three  hundred  thousand 
dollars,  except  in  case  of  war,  to  repel  invasion,  or  sup- 
press insurrection,  unless  the  same  sliall  be  authorized 
by  some  law  for  some  single  object  or  work,  to  be  dis- 
tinctly specified  therein,  which  law  shall  provide  ways 
and  means,  exclusive  of  loans,  for  the  payment  of  the 

Constitution— 41 


Art.  IX,  §  1  CONSTITUTION  OP  1849.  642 

interest  of  such  debt  or  liability  as  it  falls  due,  and  also 
to  pay  and  discharge  the  principal  of  such  debt  or  lia- 
bility within  twenty  years  from  the  time  of  the  contract- 
ing thereof,  and  shall  be  irrepealable  until  the  principal 
and  interest  thereon  shall  be  paid  and  discharged;  but 
no  such  law  shall  take  effect  until,  at  a  general  election, 
it  shall  have  been  submitted  to  the  people  and  have 
received  a  majority  of  all  the  votes  cast  for  and  against 
it  at  such  election ;  and  all  money  raised  by  authority  of 
such  law  shall  be  applied  only  to  the  specific  object 
therein  stated,  or  to  the  payment  of  the  debt  thereby 
created;  and  such  law  shall  be  published  in  at  least  one 
newspaper  in  each  judicial  district,  if  one  be  published 
therein,  throughout  the  state,  for  three  months  next  pre- 
ceding the  election  at  which  it  is  submitted  to  the  people. 

ARTICLE  IX. 

•  EDUCATIOiSr. 

Section  1.  A  superintendent  of  public  instruction 
shall,  at  the  special  election  for  judicial  officers  to 
be  held  in  the  year  eighteen  hundred  and  sixty-three, 
and  every  four  years  thereafter,  at  such  special  elections, 
be  elected  by  the  qualified  voters  of  the  state,  and  shall 
enter  upon  the  duties  of  his  office  on  the  first  day  of  De- 
|eember  next  after  his  election.  (Amendment  ratified 
jSeptember  3,  1862.  Original  provided  for  term  of  three 
^ears  and  election  at  the  general  election.) 


643  CONSTITUTION  OF  184:9.     Art.  IX,  §§2-i 

Sec.  2.  The  legislature  shall  encourage,  by  all  suita- 
ble means,  the  promotion  of  intellectual,  scientific,  moral, 
and  agricultural  improvement.  The  proceeds  of  all 
lands  that  may  be  granted  by  the  United  States  to  this 
state  for  the  support  of  schools,  which  may  be  sold  or 
disposed  of,  and  the  five  hundred  thousand  acres  of  land 
granted  to  the  new  states,  under  an  act  of  Congress 
distributing  the  proceeds  of  the  public  lands  among  the 
several  states  of  the  Union,  approved  A.  D.  one  thou- 
sand eight  hundred  and  forty-one,  and  all  estates  of  de- 
ceased persons  who  may  have  died  without  leaving  a  will 
or  heir,  and  also  such  per  cent  as  may  be  granted  by 
Congress  on  the  sale  of  lands  in  this  state,  shall  be  and 
remain  a  perpetual  fund,  the  interest  of  which,  together 
with  all  the  rents  of  the  unsold  lands,  and  such  other 
means  as  the  legislature  may  provide,  shall  be  inviola- 
bly appropriated  to  the  support  of  common  schools 
throughout  the  state. 

Sec.  3.  The  legislature  shall  provide  for  a  system  of 
common  schools,  by  which  a  school  shall  be  kept  up  and 
supported  in  each  district  at  least  three  months  in  every 
year;  and  any  school  district  neglecting  to  keep  up  and 
support  sucli  a  school  may  be  deprived  of  its  proportion 
of  the  interest  of  the  public  fund  during  such  neglect. 

Sec.  4.  The  legislature  shall  take  measures  for  the 
protection,  improvement,  or  other  disposition  of  such 
lands  as  have  been  or  may  hereafter  be  reserved  or 


Art.  X,  §  1  CONSTITUTION  OF  1849.  644 

granted  by  the  United  States,  or  any  person  or  persons, 
to  this  state,  for  the  use  of  a  university ;  and  the  funds 
accruing  from  the  rents  or  sale  of  such  lands,  or  from 
any  other  source,  for  the  purpose  aforesaid,  shall  be  and 
remain  a  permanent  fund,  the  interest  of  which  shall  be 
applied  to  the  support  of  said  university,  wit;h  such 
branches  as  the  public  convenience  may  demand,  for  the 
promotion  of  literature,  the  arts  and  sciences,  as  may  be 
authorized  by  the  terms  of  such  grant.  And  it  shall  be 
the  duty  of  the  legislature,  as  soon  as  may  be,  to  provide 
effectual  means  for  the  improvement  and  permanent  se- 
curity of  the  funds  of  said  university. 

ARTICLE  X. 

MODE  OF  AMENDING   AND  EEVISING   THE   CONSTITU- 
TION. 

Section  1.  Any  amendment  or  amendments  to  this 
constitution  may  be  proposed  in  the  senate  or  assembly ; 
and  if  the  same  shall  be  agreed  to  by  a  majority  of  the 
members  elected  to  each  of  the  two  houses,  such  proposed 
amendment  or  amendments  shall  be  entered  on  their 
journals,  with  the  yeas  and  nays  taken  thereon,  and  re- 
ferred to  the  legislature  then  next  to  be  chosen,  and  shall 
be  published  for  three  months  next  preceding  the  time  of 
making  such  choice.  And  if,  in  the  legislature  next 
chosen  as  aforesaid,  such  proposed  amendment  or  amend- 
ments shall  be  agreed  to  by  a  majority  of  all  the  mem- 


645  CONSTITUTION  OF  1849.  Art.  X,  §  2 

bers  elected  to  each  house,  then  it  shall  be  the  duty  of 
the  legislature  to  submit  such  proposed  amendment  or 
amendments  to  the  people,  in  such  manner  and  at  such 
time  as  the  legislature  shall  prescribe ;  and  if  the  people 
shall  approve  and  ratify  such  amendment  or  amend- 
ments, by  a  majority  of  the  electors  quaKfied  to  vote  for 
members  of  the  legislature  voting  thereon,  such  amend- 
ment or  amendments  shall  become  part  of  the  constitu- 
tion. 

Sec.  2.  And  if  at  any  time  two-thirds  of  the  senate 
and  assembly  shall  think  it  necessary  to  revise  and 
change  this  entire  eonstitution,  they  shall  recommend  to 
the  electors  at  the  next  election  for  members  of  the  leg- 
islature to  vote  for  or  against  a  convention ;  and  if  it 
shall  appear  that  a  majority  of  the  electors  voting  at  such 
election  have  voted  in  favor  of  calling  a  convention,  the 
legislature  shall,  at  its  next  session,  provide  by  law  for 
calling  a  convention,  to  be  holden  within  six  months  after 
the  passage  of  such  law ;  and  such  convention  shall  con- 
sist of  a  number  of  members  not  less  than  that  of  both 
branches  of  the  legislature.  The  constitution  that  may 
have  been  agreed  upon  and  adopted  by  such  convention 
shall  be  submitted  to  the  people,  at  a  special  election  to 
be  provided  for  by  law,  for  their  ratification  or  rejec- 
tion. Each  voter  shall  express  his  opinion  by  depositing 
in  the  ballot  box  a  ticket,  whereon  shall  be  written  or 
printed  the  words  "For  the  new  constitution,"  or 
"Against  the  new  constitution."     The  returns  of  such 


Art.  XI,  §§  1,  2     CONSTITUTION  OF  1849.  646 

election  shall,  in  snch  manner  as  the  convention  shall 
direct,  be  certified  to  the  executive  of  the  state,  who  shall 
call  to  his  assistance  the  controller,  treasurer,  and  secre- 
tary of  state,  and  compare  the  votes  so  certified  to  him. 
If,  by  such  examination,  it  be  ascertained  that  a  ma- 
jority of  the  whole  number  of  votes  cast  at  such  election 
be  in  favor  of  such  new  constitution,  the  executive  of 
this  state  shall,  by  his  proclamation,  declare  such  new 
constitution  to  be  the  constitution  of  the  state  of  Cali- 
fornia.    (Amendment  ratified  November  4,  1856.) 

ARTICLE  XI. 

MISCELLANEOUS  PROVISIONS. 

Section  1.  The  first  session  of  the  legislature  shall  be 
held  at  the  Pueblo  de  San  Jose,  which  place  shall  be  the 
permanent  seat  of  government  until  removed  by  law; 
provided,  however,  that  two-thirds  of  all  the  members 
elected  to  each  house  of  the  legislature  shall  concur  in 
the  passage  of  such  law. 

See.  2.  Any  citizen  of  this  state  who  shall,  after  the 
adoption  of  this  constitution,  fight  a  duel  with  deadly 
weapons,  or  send  or  accept  a  challenge  to  fight  a  duel 
wdth  deadly  weapons,  either  within  this  state  or  out  of  it, 
or  who  shall  act  as  second  or  knowingly  aid  or  assist  in 
any  manner  those  thus  offending,  shall  not  be  allowed  to 
hold  any  office  of  profit  or  to  enjoy  the  right  of  sufi'rage 
under  this  constitution. 


647  CONSTITUTION  OF  1849.     Art.  XI,  §§  3-7 

Sec.  3.  Members  of  the  legislature  and  all  officers, 
executive  and  judicial,  except  such  inferior  officers  as 
may  be  by  law  exempted,  shall,  before  they  enter  on  the 
duties  of  their  respective  offices,  take  and  subscribe  the 
following  oath  or  affirmation : 

'*!  do  solemnly  swear  (or  affirm,  as  the  case  may  be) 
that  I  will  support  the  constitution  of  the  United  States 
and  the  constitution  of  the  state  of  California,  and  that 
I  will  faithfully  discharge  the  duties  of  the  office  of 
• ,  according  to  the  best  of  my  ability." 

And  no  other  oath,  declaration,  or  test  shall  be  re- 
quired as  a  qualification  for  any  office  or  public  trust. 

Sec.  4.  The  legislature  shall  establish  a  system  of 
county  and  town  governments,  wliich  shall  be  as  nearly 
uniform  as  practicable  throughout  the  state. 

Sec.  5.  The  legislature  shall  have  the  power  to  pro- 
vide for  the  election  of  a  board  of  supervisors  in  each 
county,  and  these  supervisors  shall  jointly  and  individ- 
ually perform  such  duties  as  may  be  prescribed  by  law. 

Sec.  6.  All  officers  whose  election  or  appointment  is 
not  provided  for  by  this  constitution,  and  all  officers 
whose  offices  may  hereafter  be  created  by  law,  shall  be 
elected  by  the  people,  or  appointed,  as  the  legislature 
may  direct. 

Sec.  7.  "When  the  dnrntion  of  any  office  is  not  pro- 
vided for  by  this  constitution,  it  may  be  declared  by  law; 
and  if  not  so  declared,  such  office  shall  be  held  during 


Art.  XI,  §§  8-13     CONSTITUTION  OF  1849.  648 

the  pleasure  of  the  authority  making  the  appointment ; 
nor  shall  the  duration  of  any  office  not  fixed  by  this  con- 
stitution ever  exceed  four  years. 

Sec.  8.  The  fiscal  year  shall  commence  on  the  first 
day  of  July. 

Sec.  9.  Each  county,  town,  city,  and  incorporated 
village  shall  make  provision  for  the  support  of  its  own 
officers,  subject  to  such  restrictions  and  regulations  as 
the  legislature  may  prescribe. 

See.  10.  The  credit  of  the  state  shall  not  in  any  man- 
ner be  given  or  loaned  to  or  in  aid  of  any  individual, 
association,  or  corporation;  nor  shall  the  state,  directly 
or  indirectly,  become  a  stockholder  in  any  association  or 
corporation. 

Sec.  11.  Suits  may  be  brought  against  the  state  in 
such  manner  and  in  such  courts  as  shall  be  directed  bj'' 
law. 

Sec.  12.  No  contract  of  marriage,  if  otherwise  duly 
made,  shall  be  invalidated  for  want  of  conformity  to  the 
requirements  of  any  religious  sect. 

Sec.  13.  Taxation  shall  be  equal  and  uniform  through- 
out the  state.  All  property  in  this  state  shall  be  taxed  in 
proportion  to  its  value,  to  be  ascertained  as  directed  by 
law ;  but  assessors  and  collectors  of  town,  county,  and 
state  taxes  shall  be  elected  by  the  qualified  electors  of  the 
district,  county,  or  town  in  which  the  property  taxed 
for  state,  county,  or  town  purposes  is  situated. 


649  CONSTITUTION  OF  1849.     Art.  XI,  §§  14-18 

Sec.  14.  All  property,  both  real  and  personal,  of  the 
■wife,  owned  or  claimed  by  her  before  marriage,  and 
that  acquired  afterward  by  gift,  devise,  or  descent,  shall 
be  her  separate  property,  and  laws  shall  be  passed  more 
clearly  defining  the  rights  of  the  wife  in  relation  as  well 
to  her  separate  property  as  to  that  held  in  common  with 
her  husband.  Laws  shall  also  be  passed  providing  for 
the  registration  of  the  wife 's  separate  property. 

Sec.  15.  The  legislature  shall  protect  by  law  from 
forced  sale  a  certain  portion  of  the  homestead  and 
other  property  of  all  heads  of  families. 

Sec.  16,  No  perpetuities  shall  be  allowed  except  for 
eleemosynary  purposes. 

Sec.  17.  Every  person  shall  be  disqualified  from  hold- 
ing any  office  of  profit  in  this  state  who  shall  have  been 
convicted  of  having  been  given  or  offered  a  bribe  to  pro- 
cure his  election,  or  appointment. 

Sec.  18.  Laws  shall  be  made  to  exclude  from  office, 
serving  on  juries  and  from  the  right  of  suffrage,  those 
who  shall  hereafter  be  convicted  of  bribery,  perjury, 
forgery,  or  other  high  crimes.  The  privilege  of  free 
suffrage  shall  be  supported  by  laws  regulating  elections, 
and  prohibiting,  under  adequate  penalties  all  undue  in- 
fluence thereon  from  power,  bribery,  tumult,  or  other  im- 
proper practice. 


Art.  XII,  §  1        CONSTITUTION  OF  1849.  650 

Sec.  19.  Absence  from  this  state  on  business  of  the 
state  or  of  the  United  States  shall  not  affect  the  ques- 
tion of  residence  of  any  person. 

Sec.  20.  A  plurality  of  the  votes  given  at  any  election 
shall  constitute  a  choice,  where  not  otherwise  directed  in 
this  constitution. 

Sec.  21.  All  laws,  decrees,  regulations,  and  provisions 
which  from  their  nature  require  publication  shall  be  pub- 
lished in.  English  and  Spanish. 

ARTICLE  XII. 

BOUNDAEY. 

Section  1.  The  boundary  of  the  state  of  California 
shall  be  as  follows: 

Commencing  at  the  point  of  intersection  of  forty-sec- 
ond degree  of  north  latitude  with  the  one  hundred  twen- 
tieth degree  of  longitude  west  from  Greenwich,  and 
running  south  on  the  line  of  said  one  hundred  twentieth 
degree  of  west  longitude  until  it  intersects  the  thirty- 
ninth  degree  of  north  latitude;  thence  running  in  a 
straight  line  in  a  southeasterly  direction  to  the  River 
Colorado,  at  a  point  where  it  intersects  the  thirty-fifth 
degree  of  north  latitude ;  thence  down  the  middle  of  the 
channel  of  said  river  to  the  boundary  line  between  the 
United  States  and  Mexico,  as  established  by  the  treaty  of 
May  thirtieth,  one  thousand  eight  hundred  and  forty- 
eight;  thence   running   west   and   along   said   boundary 


651  CONSTITUTION  OF  1849.     Schedule,  §§  1-4 

line,  to  the  Pacific  Ocean,  and  extending  therein  three 
English  miles ;  thence,  running  in  a  northwesterly  direc- 
tion and  following  the  direction  of  the  Pacific  Coast,  to 
the  forty-second  degree  of  north  latitude ;  thence,  on  the 
line  of  said  forty-second  degree  of  north  latitude,  to  the 
place  of  beginning.  Also  all  the  islands,  harbors,  and 
bays  along  and  adjacent  to  the  coast. 

SCHEDULE. 

Section  1.  All  rights,  prosecutions,  claims,  and  con- 
tracts, as  well  of  individuals  as  of  bodies  corporate,  and 
all  laws  in  force  at  the  time  of  the  adoption  of  this  consti- 
tution and  not  inconsistent  therewith,  until  altered  or  re- 
pealed by  the  legislature,  shall  continue  as  if  the  same 
had  not  been  adopted. 

Sec.  2.  The  legislature  shall  provide  for  the  removal 
of  all  causes  which  may  be  pending  when  this  constitu- 
tion goes  into  effect  to  courts  created  by  the  same. 

Sec.  3.  In  order  that  no  inconvenience  may  result  to 
the  public  service  from  the  taking  effect  of  this  constitu- 
tion, no  office  shall  be  superseded  thereby  nor  the  laws 
relative  to  the  duties  of  the  several  officers  be  changed 
until  the  entering  into  office  of  the  new  officers  to  be  ap- 
pointed under  this  constitution. 

Sec.  4.  The  provisions  of  this  constitution  concerning 
the  term  of  residence  necessary  to  enable  persons  to  hold 
certain  offices  therein  mentioned,  shall   not  be  held  to 


Schedule,  §§  5,  6     constitution  of  1849.  652 

apply  to  officers  chosen  by  the  people  at  the  first  elec- 
tion, or  by  the  legislature  at  its  first  session. 

Sec.  5.  Every  citizen  of  California  declared  a  legal 
voter  by  this  constitution,  and  every  citizen  of  the  United 
States  a  resident  of  this  state  on  the  day  of  election,  shall 
be  entitled  to  vote  at  the  first  general  election  under  this 
constitution,  and  on  the  question  of  the  adoption  thereof. 

Sec.  6.  This  constitution  shall  be  submitted  to  the 
people  for  their  ratification  or  rejection  at  the  general 
election  to  be  held  on  Tuesday,  the  thirteenth  day  of 
November  next.  The  executive  of  the  existing  govern- 
ment of  California  is  hereby  requested  to  issue  a  proc- 
lamation to  the  people,  directing  the  prefects  of  the 
several  districts,  or,  in  case  of  vacancy,  the  subprefects 
or  senior  judge  of  first  instance,  to  cause  such  election  to 
be  held  on  the  day  aforesaid  in  their  respective  districts. 
The  election  shall  be  conducted  in  the  manner  which  was 
prescribed  for  the  election  of  delegates  to  this  convention, 
except  that  the  prefects,  subprefects,  or  senior  judge  of 
first  instance  ordering  such  election  in  each  district  shall 
have  power  to  designate  any  additional  number  of  places 
for  opening  the  polls,  and  that  in  every  place  of  holding 
the  election  a  regular  poll  list  shall  be  kept  by  the  judges 
and  inspectors  of  election.  It  shall  also  be  the  duty  of 
these  judges  and  inspectors  of  election,  on  the  day  afore- 
said, to  receive  the  votes  of  the  electors  qualified  to  vote 
at  such  election.     Each  voter  shall  express  his  opinion 


653  CONSTITUTION  OP  1849.     Schedule,  §  6 

by  depositing  in  the  ballot  box  a  ticket  whereon  shall  be 
written  or  printed  "For  the  constitution,"  or  "Against 
the  constitution,"  or  some  such  words  as  will  distinctly 
convey  the  intention  of  the  voter.  These  judges  and  in- 
spectors shall  also  receive  the  votes  for  the  several  offi- 
cers to  be  voted  for  at  the  said  general  election,  as 
herein  provided.  At  the  close  of  the  election  the  judges 
and  inspectors  shall  carefully  count  each  ballot,  and 
forthwith  make  duplicate  returns  thereof  to  the  prefect, 
subprefeet  or  senior  judge  of  first  instance,  as  the  case 
may  be,  of  their  respective  districts;  and  said  prefect, 
subprefeet,  or  senior  judge  of  first  instance  shall  trans- 
mit one  of  the  same,  by  the  most  safe  and  rapid  convey- 
ance, to  the  secretary  of  state.  Upon  the  receipt  of  said 
returns,  or  on  the  tenth  day  of  December  next,  if  the 
returns  be  not  sooner  received,  it  shall  be  the  duty  of  a 
board  of  canvassers,  to  consist  of  the  secretary  of  state, 
one  of  the  judges  of  the  superior  court,  the  prefect,  judge 
of  first  instance,  and  an  alcalde  of  the  district  of  Mont- 
erey, or  any  three  of  the  aforementioned  officers,  in  the 
presence  of  all  who  shall  choose  to  attend,  to  compare 
the  votes  given  at  said  election,  and  to  immediately  pub- 
lish an  abstract  of  the  same  in  one  or  more  of  the  news- 
papers of  California.  And  the  executive  will  also,  imme- 
diately after  ascertaining  that  the  constitution  has  been 
ratified  by  the  people,  make  proclamation  of  the  fact ; 
and  thenceforth  this  constitution  shall  be  ordained  and 
established  as  the  constitution  of  California. 


Scheilule,  §§  7-11     constitution  op  1849.  654 

Sec.  7.  If  this  constitution  shall  be  ratified  by  the 
people  of  California,  the  executive  of  the  existing  govern- 
ment is  hereby  requested,  immediately  after  the  same 
shall  be  ascertained,  in  the  manner  herein  directed,  to 
cause  a  fair  copy  thereof  to  be  forwarded  to  the  Presi- 
dent of  the  United  States,  in  order  that  he  may  lay  it  be- 
fore the  Congress  of  the  United  States. 

Sec.  8.  At  the  general  election  aforesaid,  viz.:  the 
thirteenth  day  of  November  next,  there  shall  be  elected  a 
governor,  lieutenant-governor,  members  of  the  legisla- 
ture, and  also  two  members  of  Congress. 

See.  9.  If  this  constitution  shall  be  ratified  by  the  peo- 
ple of  California,  the  legislature  shall  assemble  at  the 
seat  of  government  on  the  fifteenth  day  of  December 
next ;  and  in  order  to  complete  the  organization  of  that 
body  the  senate  shall  elect  a  president  pro  tempore,  un- 
til the  lieutenant-governor  shall  be  installed  into  office. 

Sec.  10.  On  the  organization  of  the  legislature,  it 
shall  be  the  duty  of  the  secretary  of  state  to  lay  before 
each  house  a  copy  of  the  abstract  made  by  the  board  of 
canvassers,  and,  if  called  for,  the  original  returns  of 
election,  in  order  that  each  house  may  judge  of  the  cor- 
rectness of  the  report  of  said  board  of  canvassers. 

Sec.  11.  The  legislature,  at  its  first  session,  shall 
elect  such  officers  as  may  be  ordered  by  this  constitu- 
tion to  be  elected  by  that  body,  and  within  four  days 
after  its  organization,  proeeed  to  elect  two  senators  to 


655  CONSTITUTION  OF  1849.     Schedule,  §§  12-14 

the  Congress  of  the  United  States.  But  no  law  passed 
by  this  legislature  shall  take  effect  until  signed  by  the 
governor  after  his  installation  into  office. 

Sec.  12.  The  senators  and  representatives  of  the 
Congress  of  the  United  States  elected  by  the  legislature 
and  people  of  California,  as  herein  directed,  shall  be 
furnished  with  certified  copies  of  this  constitution, 
when  ratified,  which  they  shall  lay  before  the  Congress 
of  the  United  States,  requesting,  in  the  name  of  the 
people  of  California,  the  admission  of  the  state  of  Cali- 
fornia into  the  American  Union. 

See.  13.  All  officers  of  this  state,  other  than  members 
of  the  legislature,  shall  be  installed  into  office  on  the 
fifteenth  day  of  December  next,  or  as  soon  thereafter  as 
practicable. 

Sec.  14.  Until  the  legislature  shall  divide  the  state 
into  counties  and  senatorial  and  assembly  districts,  as 
directed  by  this  constitution,  the  following  shall  be  the 
apportionment  of  the  two  houses  of  the  legislature,  viz. : 
The  districts  of  San  Diego  and  Los  Angeles  shall  jointly 
elect  two  senators;  the  districts  of  Santa  Barbara  and 
San  Luis  Obispo  shall  jointly  elect  one  senator;  the 
district  of  Monterey  one  senator;  the  district  of  San 
Jose,  one  senator;  the  district  of  San  Francisco,  two 
senators;  the  district  of  Sonoma,  one  senator;  the 
district  of  Sacramento,  four  senators;  and  the  district 
of  San  Joaquin,  four  senators.     And  the  district  of  San 


Schedule,  §§  15, 16     constitution  of  1849.  656 

Diego  shall  elect  one  member  of  the  assembly;  the  dis- 
trict of  Los  Angeles,  two  members  of  assembly ;  the  dis- 
trict of  Santa  Barbara,  two  members  of  assembly;  the 
district  of  San  Luis  Obispo  one  member  of  assembly ;  the 
district  of  IMonterey,  two  members  of  assembly;  the 
district  of  San  Jose,  three  members  of  assembly;  the 
district  of  San  Francisco,  five  members  of  assembly; 
the  district  of  Sonoma,  two  members  of  assembly;  the 
district  of  Sacramento,  nine  members  of  assembly ;  the 
district  of  San  Joaquin,  nine  members  of  assembly. 

Sec.  15.  Until  the  legislature  shall  otherwise  direct, 
in  accordance  with  the  provisions  of  this  constitution, 
the  salary  of  the  governor  shall  be  ten  thousand  dol- 
lars per  annum;  and  the  salary  of  the  lieutenant-gov- 
ernor shall  be  double  the  pay  of  a  state  senator;  and 
the  pay  of  members  of  the  legislature  shall  be  sixteen 
dollars  per  diem  while  in  attendance,  and  sixteen  dol- 
lars for  every  twenty  miles  traveled  by  the  usual  route 
from  their  residences  to  the  place  of  holding  the  ses- 
sion of  the  legislature,  and  in  returning  therefrom. 
And  the  legislature  shall  fix  the  salaries  of  all  officers 
other  than  those  elected  by  the  people  at  the  first 
election. 

See.  16.  The  limitation  of  the  powers  of  the  legis- 
lature contained  in  article  8  of  this  constitution  shall 
not  extend  to  the  first  legislature  elected  under  the 
same,  which  is  hereby  authorized  to  negotiate  for  such 


657 


CONSTITUTION   OF    1849. 


Signers 


amount  as  may  be  necessary  to  pay  the  expenses  of  the 
state  government.  ^   SEMPLE, 

President,  and  Delegate  from  Benicia. 
Wm.  Gt.  Marcy,  Secretary. 


Joseph  Aram, 

Ch.  T.  Botts, 

Elam  Brown, 

Elisha  0.  Crosby, 

Jose  M.  Covarubias, 
^Stephen  C.  Foster, 
K^Vm.  M.  Gwin, 
^Edw.  Gilbert, 

Henry  Hill,  / 

J.  D.  Hoppe, 

Joseph  Hobson, 

Julian  Hanks, 

H.  W.  Halleck, 

L.  W.  Hastings, 

J.  McHenry  Hollinsworth, 

Jas.  McHall  Jones,  ^ 

^Thomas  0.  Larkin, 

Francis  J.  Lippitt, 

Benj.  S.  Lippincott, 

Benj.  F.  Moore,  -^ 

Rodman  M.  Price, 
^  Jno.  McDougall, 

Man 'I  Dominguez, 

Myron  Norton, 

Constitution — 42 


Pablo  De  La  Guerra, 

Lewis  Dent, 

Kimball  H.  Dimmick, 

A.  J.  Ellis, 

Jose  Anto  Carrillo, 

Pacificus  Ord, 

Miguel  D.  Pedrorena, 

M.  M.  McCarver, 

Antonia  Ma.  Pico, 

Jacinto  Rodriguez, 

Hugh  Reid, 

J.  A.  Sutter, 

Jacob  R.  Snyder, 

Winfield  Scott  Sherwood, 

William  E.  Shannon, 

Abel  Stearns, 

P.  Sansevaine, 

Wm.  M.  Steuart, 

Henry  A,  Tefft, 

M.  G.  Vallcjo, 

Thos.  L.  Vermeule, 

J.  P.  Walker, 

O.  M.  Wozencraft. 


THE 

CONSTITUTION 

OF   THE 

UNITED  STATES. 

(65&) 


CONSTITUTION 

OF   THE 

UNITED  STATES. 


We  the  People  of  the  United  States,  in  Order  to  form 
a  more  perfect  Union,  establish  Justice,  insure  domestic 
Tranquility,  provide  for  the  common  defense,  promote 
the  general  Welfare,  and  secure  the  Blessings  of  Liberty 
to  ourselves  and  our  Posteritj^  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America. 

ARTICLE  I. 

Section  1,  All  legislative  Powers  herein  granted 
shall  be  vested  in  a  Congress  of  the  United  States,  which 
shall  consist  of  a  Senate  and  House  of  Representatives. 

Section  2.  ^The  House  of  Representatives  shall  be 
composed  of  IMembers  chosen  every  second  Year  by  the 
People  of  the  several  States,  and  the  Electors  in  each 
State  shall  have  the  Qualifications  requisite  for  Electors 
of  the  most  numerous  Branch  of  the  State  Legislature. 

^No  Person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  Age  of  twenty-five  Years,  and  been 

(661) 


Art.  I,  §  2      CONSTITUTION  OF  THE  UNITED  STATES.  662 

seven  Years  a  Citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  Inhabitant  of  that  State 
in  which  he  shall  be  chosen. 

^[Representatives  and  direct  Taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  Numbers, 
Avhich  shall  be  determined  by  adding  to  the  whole  Num- 
ber of  free  Persons,  including  those  bound  to  Service 
for  a  Term  of  Years,  and  excluding  Indians  not  taxed, 
three-fifths  of  all  other  Persons.]  The  actual  Enum- 
eration shall  be  made  within  three  Years  after  the  first 
JMeeting.of  the  Congress  of  the  United  States,  and  within 
every  subsequent  Term  of  ten  Years,  in  such  Manner 
as  they  shall  by  Law  direct.  The  Number  of  Representa- 
tives shall  not  exceed  one  for  every  thirty  Thousand,  but 
each  State  shall  have  at  Least  one  Representative;  and 
until  such  enumeration  shall  be  made,  the  State  of  New 
Hampshire  shall  be  entitled  to  chuse  three,  Massachusetts 
eight,  Rhode-Island  and  Providence  Plantations  one, 
Connecticut  five,  New  York  six.  New  Jersey  four,  Penn- 
sylvania eight,  Delaware  one,  Mar3land  six,  Virginia 
ten,  North  Carolina  five,  South  Carolina  five,  and 
Georgia  three. 

*When  vacancies  happen  in  the  Representation  from 
any  State,  the  Executive  Authority  thereof  shall  issue 
"Writs  of  Election  to  fill  such  Vacancies, 


G63         CONSTITUTION    OF   THE    UNITED   STATES.      Art.  I,  §  3 

^The  House  of  Representatives  shall  ehuse  their 
Speaker  and  other  Officers;  and  shall  have  the  sole 
Power  of  Impeachment. 

Section  3.  ^The  Senate  of  the  United  States  shall 
be  composed  of  two  Senators  from  each  State,  chosen 
by  the  Legislature  thereof,  for  six  Years ;  and  each  Sen- 
ator shall  have  one  Vote. 

^Immediately  after  they  shall  be  assembled  in  Conse- 
quence of  the  first  Election,  they  shall  be  divided  as 
equally  as  may  be  in  three  Classes.  The  Seats  of  the 
Senators  of  the  first  Class  shall  be  vacated  at  the  Ex- 
piration of  the  second  year,  of  the  second  Class  at  the 
Expiration  of  the  fourth  Year,  and  the  third  Class  at 
the  Expiration  of  the  sixth  Year,  so  that  one-third  may 
be  chosen  every  second  Year;  and  if  Vacancies  happen 
by  Resisjjnation,  or  otherwise,  during  the  Recess  of  the 
Legislature  of  any  State,  the  Executive  thereof  may 
make  temporary  Appointments  until  the  next  Meeting 
of  the  Legislature,  which  shall  then  fill  such  Vacancies. 

^No  Person  shall  be  a  Senator  who  shall  not  have  at- 
tained to  the  Age  of  thirty  Years,  and  been  nine  Years 
a  Citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  for  which  he 
shall  be  chosen. 

*The  Vice  President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  Vote,  unless 
they  be  equally  divided. 


Art.  I,  §  4      CONSTITUTION  OF  THE  UNITED  STATES.  664 

''The  Senate  shall  ehiise  their  other  Officers,  and  also 
a  President  pro  tempore,  in  the  Absence  of  the  Vice 
President,  or  when  he  shall  exercise  the  Office  of  Presi- 
dent of  the  United  States. 

^The  Senate  shall  have  the  sole  Power  to  try  all  Im- 
peachments. When  sitting  for  that  Purpose,  they  shall 
be  on  Oath  or  Affirmation.  When  the  President  of  the 
United  States  is  tried,  the  Chief  Justice  shall  preside: 
And  no  Person  shall  be  convicted  without  the  Concur- 
rence of  two-thirds  of  the  Members  present. 

^Judgment  in  Cases  of  Impeachment  shall  not  extend 
further  than  to  removal  from  Office,  and  disqualification 
to  hold  and  enjoy  any  Office  of  honor.  Trust  or  Profit 
under  the  United  States:  but  the  Party  convicted  shall 
nevertheless  be  liable  and  subject  to  Indictment,  Trial, 
Judgment  and  Punishment,  according  to  Law. 

Section  4.  ^The  Times,  Places  and  Manner  of  hold- 
ing Elections  for  Senators  and  Representatives,  shall  be 
prescribed  in  each  State  by  the  Legislature  thereof;  but 
the  Congress  may  at  any  time  by  Law  make  or  alter 
such  Regulations,  except  as  to  the  Places  of  chusing 
Senators. 

^The  Congress  shall  assemble  at  least  once  in  every 
Year,  and  such  Meeting  shall  be  on  the  first  Monday 
in  December,  unless  they  shall  by  Law  appoint  a  differ- 
ent Day. 


665      CONSTITUTION  OF  THE  UNITED  STATES.     Art.  I,  §§5,  6 

Section  5.  ^Each  House  shall  be  the  Judge  of  the 
Elections,  Returns  and  Qualifications  of  its  own  Mem- 
bers, and  a  Majority  of  each  shall  constitute  a  Quorum 
to  do  Business ;  but  a  smaller  Number  may  adjourn  from 
day  to  day,  and  may  be  authorized  to  compel  the  attend- 
ance of  absent  Members,  in  such  Manner,  and  under 
such  Penalties  as  each  House  may  provide. 

^Each  House  may  determine  the  Rules  of  its  proceed- 
ings, punish  its  Members  for  disorderly  Behavior,  and, 
with  the  Concurrence  of  two  thirds,  expel  a  Member. 

^Each  House  shall  keep  a  Journal  of  its  Proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
Parts  as  may  in  their  Judgment  require  Secrecy;  and 
the  Yeas  and  Nays  of  the  Members  of  either  House  on 
any  question  shall,  at  the  Desire  of  one  fifth  of  those 
present,  be  entered  on  the  Journal. 

^Neither  House,  during  the  Session  of  Congress,  shall, 
without  the  Consent  of  the  other,  adjourn  for  more 
than  three  days,  nor  to  any  other  Place  than  that  in 
which  the  two  Houses  shall  be  sitting. 

Section  6.  ^The  Senators  and  Representatives  shall 
receive  a  Compensation  for  their  Services,  to  be  ascer- 
tained by  Law,  and  paid  out  of  the  Treasury  of  the 
United  States.  They  shall  in  all  Cases,  except  Treason, 
Felony  and  Breach  of  the  Peace,  be  privileged  from 
Arrest  during  their  Attendance  at  the  Session  of  their 
respective  Houses,  and  in  going  to  and  returning  from 


Art.  I,  §  7      CONSTITUTION  OF  THE  UNITED  STATES.  66Q 

the  same ;  and  for  any  Speech  or  Debate  in  either  House, 
they  shall  not  be  questioned  in  any  other  Place. 

^No  Senator  or  Representative  shall,  during  the  Time 
for  which  he  was  elected,  be  appointed  to  any  civil  Office 
under  the  Authority  of  the  United  States,  which  shall 
have  been  created,  or  the  Emoluments  whereof  shall 
have  been  encreased  during  such  time;  and  no  Person 
holding  any  Office  under  the  United  States,  shall  be  a 
Member  of  either  House  during  his  Continuance  in 
Office. 

Section  7.  ^All  Bills  for  raising  Revenue  shall  origi- 
nate in  the  House  of  Representatives ;  but  the  Senate 
may  propose  or  concur  with  Amendments  as  on  other 
Bills. 

^Every  Bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  becomes  a 
Law,  be  presented  to  the  President  of  the  United  States ; 
If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return 
it,  with  his  Objections  to  that  House  in  which  it  shall 
have  originated,  who  shall  enter  the  Objections  at  large 
on  their  Journal,  and  proceed  to  reconsider  it.  If  after 
such  Reconsideration  two  thirds  of  that  House  shall 
agree  to  pass  the  Bill,  it  shall  be  sent,  together  with  the 
Objections,  to  the  other  House,  by  which  it  shall  likewise 
be  reconsidered,  and  if  approved  by  two  thirds  of  that 
House,  it  shall  become  a  Law.  But  in  all  such  Cases 
the  Votes  of  both  Houses  shall  be  determined  by  Yeas 


667         CONSTITUTION    OF   THE   UNITED   STATES.      Art.  I,  §  8 

and  Nays,  and  the  Names  of  the  Persons  voting  for  and 
against  the  Bill  shall  be  entered  on  the  Journal  of  each 
House  respectively.  If  any  Bill  shall  not  be  returned 
by  the  President  within  ten  days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  him,  the  Same 
shall  be  a  Law,  in  like  Manner  as  if  he  had  signed  it, 
unless  the  Congress  by  their  Adjournment  prevent  its 
Return,  in  which  case  it  shall  not  be  a  Law. 

'Every  Order,  Resolution,  or  Vote  to  which  the  Con- 
currence of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  Adjourn- 
ment) shall  be  presented  to  the  President  of  the  United 
States;  and  before  the  Same  shall  take  Effect,  shall  be 
approved  by  him,  or  being  disapproved  by  him,  shall 
be  repassed  by  two-thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  Rules  and  Limitations 
prescribed  in  the  Case  of  a  Bill. 

Section  8.  ^The  Congress  shall  have  Power  To  lay 
and  collect  Taxes,  Duties,  Imposts  and  Excises,  to  pay 
the  Debts  and  provide  for  the  common  Defence  and 
general  Welfare  of  the  United  States;  but  all  Duties, 
Imposts  and  Excises  shall  be  uniform  throughout  the 
United  States; 

^To  borrow  Money  on  the  credit  of  tlie  United  States ; 

^To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  Tribes; 


Art.  I,  §  8      CONSTITUTION  OP  THE  UNITED  STATES.  668 

*To  esta'olish  an  uniform  Rule  of  Naturalization,  and 
uniform  Laws  on  the  subject  of  Bankruptcies  through- 
out the  United  States ; 

^To  coin.  Money,  regulate  the  Value  thereof,  and  of 
foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures ; 

®To  provide  for  the  Punishment  of  counterfeiting  the 
Securities  and  current  Coin  of  the  United  States; 

^To  establish  Post  Offices  and  post  Roads; 

®To  promote  the  Progress  of  Science  and  useful  Arts, 
by  securing  for  limited  Times  to  Authors  and  Inventors 
the  exclusive  Right  to  their  respective  Writings  and 
Discoveries ; 

®To  constitute  Tribunals  inferior  to  the  supreme 
Court ; 

^°To  define  and  punish  Piracies  and  Felonies  com- 
mitted on  the  high  Seas,  and  Offences  against  the  Law 
of  Nations; 

^^To  declare  War,  grant  Letters  of  Marque  and 
Reprisal,  and  make  Rules  concerning  Captures  on  Land 
and  Water; 

^^To  raise  and  support  Armies,  but  no  Appropria- 
tion of  Money  to  that  Use  shall  be  for  a  longer  Term 
than  Two  Years; 

^^To  provide  and  maintain  a  Navy; 

^*To  make  Rules  for  the  Government  and  Regulation 
of  the  land  and  naval  Forces; 


669         CONSTITUTION    OF   THE   UNITED   STATES.      Art.  I,  §  9 

^'To  provide  for  calling  forth  the  Militia  to  execute 
the  Laws  of  the  Union,  suppress  Insurrections  and  repel 
Invasions ; 

^^To  provide  for  organizing,  arming,  and  disciplining, 
the  Militia,  and  for  governing  such  Part  of  them  as 
may  be  emploj'ed  in  the  Service  of  the  United  States, 
reserving  to  the  States  respectively,  the  Appointment 
of  the  Officers,  and  the  Authority  of  training  the  Militia 
according  to  the  discipline  prescribed  by  Congress; 

^^To  exercise  exclusive  Legislation  in  all  Cases  whatso- 
ever, over  such  District  (not  exceeding  ten  Miles  square) 
as  may,  by  Cession  of  particular  States,  and  the  Ac- 
ceptance of  Congress,  become  the  Seat  of  the  Govern- 
ment of  the  United  States,  and  to  exercise  like  Authority 
over  all  Places  purchased  by  the  Consent  of  the  Legisla- 
ture of  the  State  in  which  the  Same  shall  be,  for  the 
Erection  of  Forts,  Magazines,  Arsenals,  dock- Yards,  and 
other  needful  Buildings; — And 

^*To  make  all  Laws  which  shall  be  necessary  and 
proper  for  carrying  into  Execution  the  foregoing 
Powers,  and  all  other  Powers  vested  by  this  Constitu- 
tion in  the  Government  of  the  United  States,  or  in  any 
Department  or  Officer  thereof; 

Section  9.  ^The  Migration  or  Importation  of  such 
Persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Con- 
fess prior  to  the  Year  one  thousand  eight  hundred  and 


Art.  I,  §  9      CONSTITUTION  OF  THE  UNITED  STATES.  G70 

eight,  but  a  Tax  or  duty  may  be  imposed  on  such  Im- 
portation, not  exceeding  ten  dollars  for  each  Person. 

^The  Privilege  of  the  Writ  of  Habeas  Corpus  shall 
not  be  suspended,  unless  when  in  Cases  of  Rebellion  or 
Invasion  the  public  Safety  may  require  it. 

^No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be 
passed. 

^No  Capitation,  or  other  direct,  tax  shall  be  laid, 
unless  in  Proportion  to  the  Census  or  Enumeration 
herein  before  directed  to  be  taken. 

^No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State. 

®No  Preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Ports  of  one  State  over 
those  of  another;  nor  shall  Vessels  bound  to,  or  from, 
one  State,  be  obliged  to  enter,  clear,  or  pay  Duties  in 
another. 

''No  Money  shall  be  drawn  from  the  Treasury,  but 
in  Consequence  of  Appropriations  made  by  Law ;  and  a 
regular  Statement  and  Account  of  the  Receipts  and  Ex- 
penditures of  all  public  Money  shall  be  published  from 
time  to  time. 

*No  Title  of  Nobility  shall  be  granted  by  the  United 
States :  and  no  Person  holding  any  Office  or  Profit  or 
Trust  under  them,  shall,  without  the  Consent  of  Con- 
gress, accept  of  any  present,  Emolument,  Office,  or  Title, 
of  any  kind  whatever,  from  any  King,  Prince,  or  foreign 
State. 


671      CONSTITUTION    OP    THE   UNITED    STATES.      Art.  11,  §  1 

Section  10.  ^No  State  shall  enter  into  any  Treaty, 
Alliance,  or  Confederation ;  grant  Letters  of  Marque  and 
Reprisal;  coin  Money;  emit  Bills  of  Credit;  make  any 
Thing  but  gold  and  silver  Coin  a  Tender  in  Payment  of 
Debts;  pass  any  Bill  of  Attainder,  ex  post  facto  Law, 
or  Law  impairing  the  Obligation  of  Contracts;  or  grant 
any  Title  of  Nobility. 

^No  state  shall,  without  the  Consent  of  the  Congress, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  ex- 
cept what  may  be  absolutely  necessary  for  executing  it's 
inspection  Laws :  and  the  net  Produce  of  all  Duties  and 
Imposts,  laid  by  any  State  on  Imports  or  Exports,  shall 
be  for  the  Use  of  the  Treasury  of  the  United  States; 
and  all  such  Laws  shall  be  subject  to  the  Revision  and 
Controul  of  the  Congress. 

^No  State  shall,  without  the  Consent  of  Congress,  lay 
any  Duty  or  Tonnage,  keep  Troops,  or  Ships  of  War  in 
time  of  Peace,  enter  into  any  Agreement  or  Compact 
with  another  State,  or  with  a  foreign  Power,  or  engage 
in  War,  unless  actually  invaded,  or  in  such  imminent 
Danger  as  will  not  admit  of  delay. 

ARTICLE  II. 

Section  1.  ^The  executive  Power  shall  be  vested  in 
a  President  of  the  United  States  of  America,  lie  sliall 
hold  his  Office  during  the  Term  of  four  Years,  and, 


Art.  II,  §  1      CONSTITUTION  OF  THE  UNITED  STATES.         672 

together  with  the  Vice  President,  chosen  for  the  same 
Term,  be  elected,  as  follows : 

^Each  State  shall  appoint,  in  such  Manner  as  the 
Legislature  thereof  may  direct,  a  Number  of  Electors, 
equal  to  the  whole  number  of  Senators  and  Representa- 
tives to  which  the  State  may  be  entitled  in  the  Congress ; 
but  no  Senator  or  Representative,  or  Person  holding 
an  Office  of  Trust  or  Profit  under  the  United  States, 
shall  be  appointed  an  Elector. 

^["The  electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  two  Persons,  of  whom  one  at 
least  shall  not  be  an  Inhabitant  of  the  same  State  with 
themselves.  And  they  shall  make  a  List  of  all  the  per- 
sons voted  for,  and  of  the  Number  of  Votes  for  each ; 
which  List  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  Seat  of  the  Government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The 
President  of  the  Senate  shall,  in  the  Presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  Cer- 
tificates, and  the  Votes  shall  then  be  counted.  The  Per- 
son having  the  greatest  Number  of  Votes  shall  be  the 
President,  if  such  Number  be  a  Majority  of  the  whole 
Number  of  Electors  appointed ;  and  if  there  be  more 
than  one  who  have  such  Majority,  and  have  an  equal 
Number  of  Votes,  then  the  House  of  Representatives 
shall  immediately  chuse  by  Ballot  one  of  them  for  Presi- 
dent; and  if  no  Person  have  a  Majority,  then  from 
the  five  highest  on  the  List  the  said  House  shall  in  like 


G73      CONSTITUTION    OF    THE   UNITED    STATES.      Art.  II,  §  1 

Manner  eliuse  the  President.  But  in  chusing  the  Presi- 
dent, the  Votes  shall  be  taken  by  States,  the  Representa- 
tion from  each  State  having  one  Vote ;  A  quorum  for 
this  Purpose  shall  consist  of  a  Member  or  Members  from 
two-thirds  of  the  States,  and  a  Majority  of  all  the  States 
shall  be  necessary  to  a  Choice.  In  every  Case,  after 
the  Choice  of  the  President,  the  Person  having  the 
greatest  Number  of  Votes  of  the  Electors  shall  be  the 
Vice-President.  But  if  there  should  remain  two  or 
more  who  have  equal  Votes,  the  Senate  shall  chuse  from 
them  by  Ballot  the  Vice-President."] 

This  Clause  has  been  superseded  by  the  twelfth 
amendment,  p.  686. 

*The  Congress  may  determine  the  Time  of  chusing 
the  Electors,  and  the  Day  on  which  they  shall  give  their 
Votes;  which  Day  shall  be  the  same  throughout  the 
United  States. 

^No  person  except  a  natural  born  Citizen,  or  a  Citizen 
of  the  United  States,  at  the  time  of  the  adoption  of 
this  Constitution,  shall  be  eligible  to  the  Office  of  Presi- 
dent; neither  shall  any  Person  be  eligible  to  that  Office 
who  shall  not  have  attained  to  the  Age  of  thirty-five 
Years,  and  been  fourteen  Years  a  Resident  within  the 
United  States. 

*In  case  of  the  Removal  of  the  President  from  Office, 
or  of  his  Death,  Resignation,  or  Inability  to  discharge 
the  Powers  and  Duties  of  the  said  Office,  the  same  shall 

Constitution — 13 


Art.  II,  §  2      CONSTITUTION  OF  THE  UNITED  STATES.         674 

devolve  on  the  Vice  President,  and  the  Congress  may 
by  Law  provide  for  the  Case  of  Removal,  Death,  Resig- 
nation, or  Inability,  both  of  the  President  and  Vice 
President,  declaring  what  Officer  shall  then  act  as  Presi- 
dent, and  such  Officer  shall  act  accordingly,  until  the 
Disability  be  removed,  or  a  President  shall  be  elected. 

^The  President  shall,  at  stated  Times,  receive  for  his 
Services  a  Compensation,  which  shall  neither  be  en- 
creased  nor  diminished  during  the  Period  for  which 
he  shall  have  been  elected,  and  he  shall  not  receive  within 
that  Period  any  other  Emolument  from  the  United 
States,  or  any  of  them, 

^Before  he  enter  on  the  Execution  of  his  Office,  he 
shall  take  the  following  Oath  or  Affirmation: — "I  do 
solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  Office  of  President  of  the  United  States,  and  will 
to  the  best  of  my  Ability,  preserve,  protect  and  defend 
the  Constitution  of  the  United  States." 

Section  2.  ^The  President  shall  be  Commander  in 
Chief  of  the  Army  and  Navy  of  the  United  States,  and 
of  the  Militia  of  the  several  States,  when  called  into 
the  actual  Service  of  the  United  States;  he  may  require 
the  Opinion,  in  writing,  of  the  principal  Officer  in  each 
of  the  executive  Departments,  upon  any  Subject  relat- 
ing to  the  Duties  of  their  respective  Offices,  and  he  shall 
have  Power  to  grant  Reprieves  and  Pardons  for  Offenses 


G75      CONSTITUTION    OF   THE   UNITED   STATES.      Art.  II,  §  3 

against  the  United  States,  except  in  Cases  of  Impeach- 
ment. 

^He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided  two 
thirds  of  the  Senators  present  concur;  and  he  shall 
nominate,  and  by  and  with  the  Advice  and  Consent  of 
the  Senate,  shall  appoint  Ambassadors,  other  public 
INIinisters  and  Consuls,  Judges  of  the  supreme  Court, 
and  all  other  Officers  of  the  United  States,  whose  Ap- 
pointments are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  Law:  but  the  Congress 
may  by  Law  vest  the  Appointment  of  such  inferior 
Officers  as  they  think  proper,  in  the  President  alone, 
in  the  Courts  of  Law,  or  in  the  Heads  of  Departments. 

*The  President  shall  have  Power  to  fill  up  all  Vacan- 
cies that  may  happen  during  the  Recess  of  the  Senate, 
by  granting  Commissions  which  shall  expire  at  the  End 
of  their  next  Session. 

Section  3.  He  shall  from  time  to  time  give  to  the 
Congress  Information  of  the  State  of  the  Union,  and 
recommend  to  their  Consideration  such  Measures  as  he 
shall  judge  necessary  and  expedient;  he  may,  on  ex- 
traordinary Occasions,  convene  both  Houses,  or  either 
of  them,  and  in  Case  of  Disagreement  between  them, 
with  Respect  to  the  Time  of  Adjournment,  he  may  ad- 
journ them  to  such  Time  as  he  shall  think  proper;  he 
shall  receive  Ambassadors  and  other  public  Ministers; 


Art.  Ill,  §  1      CONSTITUTION  OF  THE  UNITED  STATES.      676 

he  shall  take  Care  that  the  Laws  be  faithfully  executed, 
and  shall  Commission  all  the  Officers  of  the  United 
States. 

Section  4.  The  President,  Vice  President  and  all 
civil  Officers  of  the  United  States,  shall  be  removed 
from  Office  on  Impeachment  for,  and  Conviction  of, 
Treason,  Bribery,  or  other  high  Crimes  and  Misde- 
meanors. 

ARTICLE  III. 

Section  1.  The  judicial  Power  of  the  United  States, 
shall  be  vested  in  one  supreme  Court,  and  in  such  in- 
ferior Courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish.  The  Judges,  both  of  the  supreme 
and  inferior  Courts,  shall  hold  their  Offices  during  good 
Behaviour,  and  shall,  at  stated  Times,  receive  for  their 
Services,  a  Compensation,  which  shall  not  be  diminished 
during  their  Continuance  in  Office. 

Section  2.  ^The  judicial  Power  shall  extend  to  all 
Cases,  in  Law  and  Equity,  arising  under  this  Constitu- 
tion, the  Laws  of  the  United  States,  and  Treaties  made, 
or  which  shall  be  made,  under  their  Authority; — to  all 
Cases  affecting  Ambassadors,  other  public  Ministers  and 
Consuls ; — to  all  Cases  of  admiralty  and  maritime  Juris- 
diction;— to  Controversies  to  which  the  United  States 
shall  be  a  Party; — to  Controversies  between  two  or 
more  States; — between  a  State  and  Citizens  of  another 
State; — between  Citizens  of  different  States, — between 


677      CONSTITUTION  OF  THE  UNITED  STATES.      Art.  Ill,  §  3 

Citizens  of  the  same  State  claiming  Lands  under  Grants 
of  different  States,  and  between  a  State,  or  the  Citizens 
thereof,  and  foreign  States,  Citizens  or  Subjects. 

^In  all  Cases  affecting  Ambassadors,  other  public  Min- 
isters and  Consuls,  and  those  in  which  a  State  shall  be 
Party,  the  Supreme  Court  shall  have  original  Jurisdic- 
tion. In  all  the  other  Cases  before  mentioned,  the  su- 
preme Court  shall  have  appellate  Jurisdiction,  both  as 
to  Law  and  Fact,  with  such  Exceptions,  and  under  such 
Regulations  as  the  Congress  shall  make. 

^The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 
ment, shall  be  by  Jury;  and  such  Trial  shall  be  held  in 
the  State  where  the  said  Crimes  shall  have  been  com- 
mitted; but  when  not  committed  within  any  State,  the 
Trial  shall  be  at  such  Place  or  Places  as  the  Congress 
may  by  Law  have  directed. 

Section  3.  ^Treason  against  the  United  States,  shall 
consist  only  in  levying  AVar  against  them,  or  in  adhering 
to  their  Enemies,  giving  them  Aid  and  Comfort.  No 
Person  shall  be  convicted  of  Treason  unless  on  the  Testi- 
mony of  two  AVitnesses  to  the  same  overt  Act,  or  on 
Confession  in  open  Court. 

^The  Congress  shall  have  Power  to  declare  the  Punish- 
ment of  Treason,  but  no  Attainder  of  Treason  shall  work 
Corruption  of  Blood,  or  Forfeiture  except  during  the 
Life  of  the  Person  attainted. 


Art.  IV,  §  1      CONSTITUTION  OF  THE   UNITED  STATES.      678 

ARTICLE  IV. 

Section  1.  Full  Faith  and  Credit  shall  be  given  in 
each  State  to  the  public  Acts,  Records,  and  judicial  Pro- 
ceedings of  every  other  State.  And  the  Congress  may 
by  general  Laws  prescribe  the  Manner  in  which  such 
Acts,  Records  and  Proceedings  shall  be  proved,  and  the 
Effect  thereof. 

Section  2.  ^The  Citizens  of  each  State  shall  be  en- 
titled to  all  Privileges  and  Immunities  of  Citizens  in  the 
several  States. 

^A  Person  charged  in  any  State  with  Treason,  Felony, 
or  other  Crime,  who  shall  flee  from  Justice,  and  be 
found  in  another  State,  shall  on  Demand  of  the  execu- 
tive Authority  of  the  State  from  which  he  fled,  be  de- 
livered up  to  be  removed  to  the  State  having  Jurisdiction 
of  the  Crime. 

^No  Person  held  to  Service  or  Labour  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall, 
in  Consequence  of  any  Law  or  Regulation  therein,  be 
discharged  from  such  Service  or  Labour,  but  shall  be 
delivered  up  on  Claim  of  the  Party  to  whom  such  Ser- 
vice or  Labour  may  be  due. 

Section  3.  ^New  States  may  be  admitted  by  the 
Congress  into  this  Union;  but  no  new  State  shall  be 
formed  or  erected  within  the  Jurisdiction  of  any  other 
State ;  nor  any  State  be  formed  by  the  Junction  of  two 
or  more  States,  or  Parts  of  States,  without  the  Consent 


679  CONSTITUTION  OF  THE  UNITED  STATES.  Art.  V 

of  the  Legislatures  of  the  States  concerned  as  well  as 
of  the  Congress. 

^The  Congress  shall  have  Power  to  dispose  of  and 
make  all  needful  Rules  and  Regulations  respecting  the 
Territory  or  other  Property  belonging  to  the  United 
States ;  and  nothing  in  this  Constitution  shall  be  so  con- 
strued as  to  Prejudice  any  Claims  of  the  United  States, 
or  of  an}'  particular  State. 

Section  4.  The  United  States  shall  guarantee  to 
every  State  in  this  Union  a  Republican  Form  of  Govern- 
ment, and  shall  protect  each  of  them  against  Invasion ; 
and  on  Application  of  the  Legislature,  or  of  the  Ex- 
ecutive (when  the  Legislature  cannot  be  convened) 
against  domestic  Violence. 

ARTICLE  V. 

The  Congress,  whenever  two  thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  Amendments  to 
this  Constitution,  or,  on  the  Application  of  the  Legisla- 
tures of  two  thirds  of  the  several  States,  shall  eall  a 
Convention  for  proposing  Amendments,  which,  in  either 
Case,  shall  be  valid  to  all  Intents  and  Purposes,  as  Part 
of  this  Constitution,  when  ratified  by  the  Legislatures 
of  three  fourths  of  the  several  States,  or  by  Conven- 
tions in  three  fourths  thereof,  as  the  one  or  the  other 
Mode  of  Ratification  may  be  proposed  by  the  Congress ; 
Provided  that  no  Amendment  which  may  be  made  prior 


Art.  VI  CONSTITUTION  OP  THE  UNITED  STATES.      680 

to  the  Year  One  thousand  eight  hundred  and  eight  shall 
in  any  Manner  affect  the  first  and  fourth  Clauses  in  the 
Ninth  Section  of  the  first  Article;  and  that  no  State, 
without  its  Consent,  shall  be  deprived  of  its  equal  Suf- 
frage in  the  Senate. 

ARTICLE  VI. 

^All  Debts  contracted  and  Engagements  entered  into, 
before  the  Adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution, 
as  under  the  Confederation. 

^This  Constitution,  and  the  Laws  of  the  United  States 
which  shall  be  made  in  Pursuance  thereof;  and  all 
Treaties  made,  or  which  shall  be  made,  under  the 
Authority  of  the  United  States,  shall  be  the  supreme 
Law  of  the  Land;  and  the  Judges  in  every  State  shall 
be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

^The  Senators  and  Representatives  before  mentioned, 
and  the  Members  of  the  several  State  Legislatures,  and 
all  executive  and  judicial  Officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  Oath 
or  Affirmation,  to  support  this  Constitution;  but  no  re- 
ligious Test  shall  ever  be  required  as  a  Qualification  to 
any  Office  or  public  Trust  under  the  United  States. 


681  CONSTITUTION  OP  THE  UNITED  STATES.      Art.  VII 

ARTICLE  VII. 

The  Ratification  of  the  Conventions  of  nine  States, 
shall  be  sufficient  for  the  establishment  of  this  Consti- 
tution between  the  States  so  ratifying  the  Same. 
Done  in  Convention  by  the  Unanimous  Consent  of  the 
States  present  the  Seventeenth  Day  of  September  in 
the  Year  of  our  Lord  one  thousand  seven  hundred 
and  Eighty  seven,  and  of  the  Independence  of  the 
United  States  of  America  the  Twelfth.     In  Witness 
whereof  We  have  hereunto  subscribed  our  Names, 

G°   :  WASHINGTON— 
Presidt.  and  Deputy  from  Virginia 

New  Hampshire. 
John  Langdon  Nicholas  Oilman 

Massachusetts. 
Nathaniel  Gorham  Rufus  King 

Connecticut. 
W.  Saml.  Johnson  Roger  Sherman 

New  York. 
Alexander  Hamilton 

New  Jersey. 
Wil   :  Livingston  Wm.  Paterson 

David  Brearley  Jona   :  Dayton 


Signers    constitution  of  tue  united  states.  682 

Pennsylvania. 
B.  Franklin  Thos.  Fitzsimons 

Thomas  Mifflin  Jared  IngersoU 

Robt.  Morris  James  Wilson 

Geo.  Clymer  Gouv  Morris 

Delaware. 
Geo   :  Read  Richard  Bassett 

Gunning  Bedford  Jun  Jaco   :  Broom 

John  Dickinson 

Maryland. 
James  McHenry  Danl.  Carroll 

Dan  of  St  Thos  Jenifer 

Virginia. 
John  Blair—  James  Madison  Jr. 

North  Carolina. 
Wm.  Blount  IIu  Williamson 

Richd.  Dobbs  Spaight 

South  Carolina. 
J.  Rutledge  Charles  Pinclmey 

Charles  Cotesworth  Pinckney  Pierce  Butler 

Georgia. 
William  Few  Abr  Baldwin 

Attest  WILLIAM  JACKSON  Secretary 


683  CONSTITUTION  OP  u.  s.  Amenclm.,  Arts.  I-IV 

ARTICLES  IN  ADDITION  TO,  AND  AMENDMENT  OF,  THE  CON- 
STITUTION OF  THE  UNITED  STATES  OF  AMERICA,  PROPOSED 
BY  CONGRESS,  AND  RATIFIED  BY  THE  LEGISLATURES  OF 
THE  SE\^RAL  STATES  PURSUANT  TO  THE  FIFTH  ARTICLE 
OF  THE  ORIGINiVL  CONSTITUTION. 

[ARTICLE  I.]' 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof ; 
or  abridging  the  freedom  of  speech,  or  of  the  press;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a  redress  of  grievances. 

[ARTICLE  IL] 

A  well  regulated  Militia,  being  necessary  to  the  secu- 
rity of  a  free  State,  the  right  of  the  people  to  keep  and 
bear  Arms,  shall  not  be  infringed. 

[ARTICLE  in.] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any 
house,  without  the  consent  of  the  Owner,  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law. 

[ARTICLE  IV.] 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 


Amendm.,  Arts.  V,  VI     constitution  op  u.  s.  GSl 

and  seizures,  shall  not  be  violated,  and  no  Warrants  shall 
issue,  but  upon  probable  cause,  supported  by  Oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

[ARTICLE  v.] 

No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  Grand  Jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual 
service  in  time  of  War  or  public  danger;  nor  shall  any 
person  be  subject  for  the  same  offense  to  be  twice  put 
in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled  in 
any  Criminal  Case  to  be  a  witness  against  himself,  nor 
be  deprived  of  life,  liberty,  or  property,  without  due 
process  of  law;  nor  shall  private  property  be  taken  for 
public  use,  without  just  compensation. 

[ARTICLE  VI.] 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation ;  to  be  confronted 
with  the   witnesses   against  him;   to   have   compulsory 


685        CONSTITUTION  OF  u.  s.     Amenclm.,  Arts.  VII-XI 

process  for  obtaining  "Witnesses  in  his  favor,  and  to  have 
the  Assistance  of  Counsel  for  his  defense. 

[ARTICLE  VII.] 

In  suits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved,  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  Court  of  the 
United  States,  than  according  to  the  rules  of  the  com- 
mon law. 

[ARTICLE  VIIL] 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

[ARTICLE  IX.] 
The    enumeration    in    the    Constitution,    of    certain 
rights,  shall  not  be  construed  to  deny  or  disparage  oth- 
ers retained  by  the  people. 

[ARTICLE  X.] 
The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people. 

[ARTICLE  XL] 
The  Judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 


Amendm.,  Art.  XII     constitution  op  u.  s.  686 

nieneed  or  prosecuted  against  one  of  the  United  States 
by  Citizens  of  another  State,  or  by  Citizens  or  Subjects 
of  any  Foreign  State. 

[ARTICLE  XII.] 
The  Electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
state  with  themselves;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of 
the  number  of  votes  for  each,  which  lists  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  seat  of  the  gov- 
ernment of  the  United  States,  directed  to  the  President 
of  the  Senate; — The  President  of  the  Senate  shall,  in 
the  presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates  and  the  votes  shall  then  be 
counted; — The  person  having  the  greatest  number  of 
votes  for  President,  shall  be  the  President,  if  such  num- 
ber be  a  majority  of  the  whole  number  of  Electors  ap- 
pointed ;  and  if  no  person  have  such  majority,  then  from 
the  persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately,  by 
ballot,  the  President.  But  in  choosing  the  President, 
the  votes  shall  be  taken  by  states,  the  representation 


687  CONSTITUTION  OF  u.  s.     Ameiidm.,  Art,  XIII 

from  each  state  having  one  vote ;  a  quorum  for  this  pur- 
pose shall  consist  of  a  member  or  members  from  two- 
thirds  of  the  states,  and  a  majority  of  all  the  states 
shall  be  necessary  to  a  choice.  And  if  the  House  of 
Representatives  shall  not  choose  a  President  whenever 
the  right  of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then  the  Vice- 
President  shall  act  as  President,  as  in  the  case  of  the 
death  or  other  constitutional  disability  of  the  President. 
The  person  having  the  greatest  number  of  votes  as  Vice- 
President,  shall  be  the  Vice-President,  if  such  number 
be  a  majority  of  the  whole  number  of  Electors  ap- 
pointed, and  if  no  person  have  a  majority,  then  from 
the  two  highest  numbers  on  the  list,  the  Senate  shall 
choose  the  Vice-President;  a  quorum  for  the  purpose 
shall  consist  of  two-thirds  of  the  whole  number  of  Sen- 
ators, and  a  majority  of  the  whole  number  shall  be  nec- 
essary to  a  choice.  But  no  person  constitutionally  in- 
eligible to  the  office  of  President  shall  be  eligible  to  that 
of  Vice-President  of  the  United  States. 

[ARTICLE  XIII.] 
Section  1.  Neither  slavery  nor  involuntary  servi- 
tude, except  as  a  punishment  for  crime  whereof  the 
party  shall  have  been  duly  convicted,  shall  exist  witliin 
the  United  States,  or  any  place  subject  to  their  juris- 
diction. 


Amendm.,  Art.  XIV     constitution  of  u,   s.  688 

Section  2.  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

[ARTICLE  XIV.] 

Section  1.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States ;  nor  shall  any  State 
deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in  each 
State,  excluding  Indians  not  taxed.  But  when  the  right 
to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice-President  of  the  United  States,  Rep- 
resentatives in  Congress,  the  Executive  and  Judicial  of- 
ficers of  a  State,  or  the  members  of  the  Legislature, 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such 
State,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  par- 
ticipation in  rebellion,  or  other  crime,  the  basis  of  rep- 
resentation therein  shall  be  reduced  in  the  proportion 
which  the  n amber  of  such  male  citizens  shall  bear  to 


689  CONSTITUTION  OF  u.  s.     Amenclm.,  Art.  XIV 

the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  State, 

Section  3.  No  person  shall  be  a  Senator  or  Repre- 
sentative in  Congress,  or  elector  of  President  and  Vice- 
President,  or  hold  any  office,  civil  or  military,  under  the 
United  States,  or  under  any  State,  who,  having  previ- 
ouslj*  taken  an  oath,  as  a  member  of  Congress,  or  as  an 
officer  of  the  United  States,  or  as  a  member  of  any  State 
legislature,  or  as  an  executive  or  judicial  officer  of  any 
State,  to  support  the  Constitution  of  the  United  States, 
shall  have  engaged  in  insurrection  or  rebellion  against 
the  same,  or  given  aid  or  comfort  to  the  enemies  thereof. 
But  Congress  may  by  a  vote  of  two-thirds  of  each  House, 
remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts  in- 
curred for  payment  of  pensions  and  bounties  for  ser- 
vices in  suppressing  insurrection  or  rebellion,  shall  not 
be  questioned.  But  neither  the  United  States  nor  any 
State  shall  assume  or  pay  any  debt  or  obligation  in- 
curred in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emancipation 
of  any  slave ;  but  all  such  debts,  obligations  and  claims 
shall  be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article. 

Constitution — 44 


Amendm.,  Art.  XV    constitution  of  u.  s.  690 

[ARTICLE  XV.] 

Section  1.  The  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the  United 
States,  or  by  any  State  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude. 

Section  2.  The  Congress  shall  have  power  to  en- 
force this  article  by  appropriate  legislation. 


TREATY  OF  PEACE,  FRIENDSHIP,  LIMITS,  AND 
SETTLEMENT. 

BETWEEN  THE  UNITED  STATES  OF  AMERICA  AND  THE 
MEXICAN  REPUBLIC. 

Dated  at  Guadalupe  Hidalgo,  2d  February,  1848. 
Exchanged  at  Queretaro,  30th  May,  1848. 
Ratified  by  the  President  U.  S.,  16th  March,  1848. 
Proclaimed  by  the  President  U.  S.,  4th  July,  1848. 


BY  THE  PRESIDENT  OF  THE  UNITED  STATES 
OF  AMERICA. 
A  PROCLAMATION. 

Whereas  a  Treaty  of  Peace,  Friendship,  Limits,  and 
Settlement,  between  the  United  States  of  America  and 
the  Mexican  Republic,  was  concluded  and  signed  at 
the  city  of  Guadalupe  Hidalgo,  on  the  second  day  of 
February,  one  thousand  eight  hundred  and  forty-eight. 
which  Treaty,  as  amended  by  the  senate  of  the  United 
States,  and  being  in  the  English  and  Spanish  languages, 
is  word  for  word  as  follows : 

In  the  Name  of  Almighty  God : 

The  United  States  of  America  and  the  United  Mexi- 
can States,  animated  by  a  sincere  desire  to  put  an  end 
to  the  calamities  of  the  war  which  unhappily  exists 

(091) 


Art.  I  TREATY  OF   GUADALUPE   HIDALGO.  692 

between  the  two  republics,  and  to  establish  upon  a  solid 
basis  relations  of  peace  and  friendship,  which  shall 
confer  reciprocal  benefits  upon  the  citizens  of  both, 
and  assure  the  concord,  harmony,  and  mutual  confi- 
dence, wherein  the  two  people  sJiould  live,  as  good 
neighbors,  have  for  that  purpose  appointed  their  re- 
spective plenipotentiaries— that  is  to  say,  the  President 
of  the  United  States  has  appointed  Nicholas  P.  Trist,  a 
citizen  of  the  United  States,  and  the  President  of  the 
r\Iexican  Republic  has  appointed  Don  Luis  Gonzaga 
Cuevas,  Don  Bernardo  Couto,  and  Don  Miguel  Atris- 
tan,  citizens  of  the  said  Republic,  who,  after  a  recipro- 
cal communication  of  their  respective  full  powers,  have, 
under  the  protection  of  Almighty  God,  the  author  of 
peace,  arranged,  agreed  upon,  and  signed  the  follow- 
ing: 

Treaty  of  Peace,  Friendship,  Limits,  and  Settlement, 
between  the  United  States  of  America  and  the  Mex- 
ican Republic. 

ARTICLE  I. 
There  shall  be  firm  and  universal  peace  between  the 
United  States  of  America  and  the  Mexican  Republic, 
and  between  their  respective  countries,  territories, 
cities,  towns,  and  people,  without  exception  of  places 
or  persons. 


G93  TREATY   OF   GUADALUPE   HIDALGO.      ArtS.  II,  III 

ARTICLE  II. 

Immediately  upon  the  signature  of  this  Treaty,  a 
convention  shall  be  entered  into  between  a  com- 
missioner or  commissioners  appointed  by  the  General- 
in-Chief  of  the  forces  of  the  United  States,  and 
such  as  may  be  appointed  by  the  Mexican  government, 
to  the  end  that  a  provisional  suspension  of  hostilities 
shall  take  place,  and  that,  in  the  places  occupied  by 
the  said  forces,  constitutional  order  may  be  re-estab- 
lished, as  regards  the  political,  administrative,  and 
judicial  branches,  so  far  as  this  shall  be  permitted  by 
the  circumstances  of  military  occupation. 

ARTICLE  III. 

Immediately  upon  the  ratification  of  the  present 
Treaty  by  the  government  of  the  United  States,  orders 
shall  be  transmitted  to  the  commanders  of  their  land 
and  naval  forces,  requiring  the  latter  (provided  this 
Treaty  shall  then  have  been  ratified  by  the  govern- 
ment of  the  Mexican  Republic,  and  the  ratifications  ex- 
changed) immediately  to  desist  from  blockading  any 
Mexican  ports;  and  requiring  the  former  (under  the 
same  condition)  to  commence,  at  the  earliest  moment 
practicable,  withdrawing  all  troops  of  the  United  States 
then  in  the  interior  of  the  Mexican  Republic,  to  points 
that  shall  be  selected  by  common  agreement,  at  a  dis- 
tance from  the  seaports  not  exceeding  thirty  leagues; 


Art.  Ill  TREATY   OF   GUADALUPE   HIDALGO.  694 

and  such  evacuation  of  tlie  interior  of  the  Republic 
shall  be  completed  with  the  least  possible  delay;  the 
Mexican  government  hereby  binding  itself  to  afford 
every  facility  in  its  povrer  for  rendering  the  same  con- 
venient to  the  troops,  on  their  march  and  in  their  new 
positions,  and  for  promoting  a  good  understanding  be- 
tween them  and  the  inhabitants.  In  like  manner,  or- 
ders shall  be  despatched  to  the  persons  in  charge  of 
the  custom-houses  at  all  ports  occupied  by  the  forces 
of  the  United  States,  requiring  them  (under  the  same 
condition)  immediately  to  deliver  possession  of  the 
same  to  the  persons  authorized  by  the  Mexican  gov- 
ernment to  receive  it,  together  with  all  bonds  and 
e\adences  of  debt  for  duties  on  importations  and  on 
exportations,  not  yet  fallen  due.  Moreover,  a  faithful 
and  exact  account  shall  be  made  out,  showing  the  en- 
tire amount  of  all  duties  on  imports  and  on  exports, 
collected  at  such  custom-houses,  or  elsewhere  in  Mex- 
ico, by  authority  of  the  United  States,  from  and  af- 
ter the  day  of  the  ratification  of  this  Treaty  by  the 
government  of  the  Mexican  Republic ;  and  also  an  ac- 
count of  the  cost  of  collection ;  and  such  entire  amount, 
deducting  only  the  cost  of  collection,  shall  be  delivered 
to  the  Mexican  government,  at  the  city  of  Mexico, 
within  three  months  after  the  exchange  of  ratifica- 
tions. 

The  evacuation  of  the  capital  of  the  Mexican  Repub- 
lic by  the  troops  of  the  United  States,  in  virtue  of  the 


695  TREATY   OF    GUADALUPE   HIDALGO,  Art.  IV 

above  stipulation  shall  be  completed  in  one  month 
after  the  orders  there  stipulated  for  shall  have  been 
received  by  the  commander  of  said  troops,  or  sooner  if 
possible. 

ARTICLE  IV. 

Immediately  after  the  exchange  of  ratifications  of 
the  present  Trcat}^,  all  castles,  forts,  territories,  places, 
and  possessions,  which  have  been  taken  or  occupied  by 
the  forces  of  the  United  States  during  the  present  war, 
within  the  limits  of  the  Mexican  Republic,  as  about  to 
be  established  by  the  following  article,  shall  be  defi- 
nitely restored  to  the  said  republic,  together  with  all 
the  artillery,  arms,  apparatus  of  war,  munitions,  and 
other  public  property,  which  were  in  the  said  castles 
and  forts  when  captured,  and  which  shall  remain 
there  at  the  time  when  this  Treaty  shall  be  duly  ratified 
by  the  government  of  the  IMexican  Republic.  To  this 
end,  immediately  upon  the  signature  of  this  Treaty, 
orders  shall  be  despatched  to  the  American  officers  com- 
manding such  castles  and  forts,  securing  against  the 
removal  or  destruction  of  any  such  artillery,  arms,  ap- 
paratus of  war,  munitions,  or  other  public  property. 
The  city  of  Mexico,  within  the  inner  line  of  intrench- 
ments  surrounding  the  said  city,  is  comprehended  in 
the  above  stipulations,  as  regards  the  restoration  of 
artillery,  apparatus  of  war,  etc. 


Art.  IV  TREATY   OF   GUADALUPE   HIDALGO.  696 

The  final  evacuation  of  the  territory  of  the  Mexican 
Republic,  by  the  forces  of  the  United  States,  shall  be 
completed  in  three  months  from  the  said  exchange  of 
ratifications,  or  sooner  if  possible:  the  Mexican  gov- 
ernment hereby  engaging,  as  in  the  foregoing  article, 
to  use  all  means  in  its  power  for  facilitating  such  evac- 
uation, and  rendering  it  convenient  to  the  troops,  and 
for  promoting  a  good  understanding  between  them  and 
the  inhabitants. 

If,  however,  the  ratification  of  this  Treaty  by  both 
parties  should  not  take  place  in  time  to  allow  the  em- 
barcation  of  the  troops  of  the  United  States  to  be  com- 
pleted before  the  commencement  of  the  sickly  season, 
at  the  Mexican  ports  on  the  Gulf  of  Mexico,  in  such 
case  a  friendly  arrangement  shall  be  entered  into  be- 
tween the  General-in-Chief  of  the  said  troops  and  the 
Mexican  government,  whereby  healthy  and  otherwise 
suitable  places,  at  a  distance  from  the  ports  not  ex- 
ceeding thirty  leagues,  shall  be  designated  for  the 
residence  of  such  troops  as  may  not  yet  have  embarked, 
until  the  return  of  the  healthy  season.  And  the  space 
of  time  here  referred  to  as  comprehending  the  sickly 
season,  shall  be  understood  to  extend  from  the  first 
day  of  May  to  the  first  day  of  November. 

All  prisoners  of  war  taken  on  either  side,  on  land 
or  on  sea,  shall  be  restored  as  soon  as  practicable  after 
the  exchange  of  ratifications  of  this  Treaty.  It  is 
also  agreed  that  if  any  Mexicans  should  now  be  held 


697  TREATY   OF   GUADALUPE   HIDALGO.  Art.  V 

as  captives  by  any  savage  tribe  within  the  limits  of 
the  United  States,  as  about  to  be  established  by  the  fol- 
lowing article,  the  government  of  the  said  United  States 
will  exact  the  release  of  such  captives,  and  cause  them 
to  be  restored  to  their  country. 


ARTICLE  Y. 

The  boundary  line  between  the  two  republics  shall 
commence  in  the  Gulf  of  Mexico,  three  leagues  from 
land,  opposite  the  mouth  of  the  Rio  Grande,  otherwise 
called  Rio  Bravo  del  Norte,  or  opposite  the  mouth  of 
its  deepest  branch,  if  it  should  have  more  than  one 
branch  emptying  directly  into  the  sea;  from  thence  up 
the  middle  of  that  river,  following  the  deepest  channel, 
where  it  has  more  than  one,  to  the  point  where  it  strikes 
the  southern  boundary  of  New  Mexico;  thence,  west- 
wardly,  along  the  whole  southern  boundary  of.  New 
Mexico  (which  runs  north  of  the  town  called  Paso)  to 
its  western  termination;  thence,  northward,  along 
the  western  line  of  New  Mexico,  until  it  intersects  the 
first  branch  of  the  river  Gila  (or  if  it  should  not  inter- 
sect any  branch  of  that  river,  then  to  the  point  on  the 
said  line  nearest  to  such  branch,  and  thence  in  a  direct 
line  to  the  same)  ;  thence  down  the  middle  of  the  said 
branch  and  of  the  said  river,  until  it  empties  into  the 
Rio  Colorado  J  thence  across  the  Rio  Colorado,  follow- 


Art.  V  TREATY   OF   GUADALUPE   HIDALGO.  698 

ing  the  division  line  between  Upper  and  Lower  Califor- 
nia, to  the  Pacific  Ocean. 

The  southern  and  western  limits  of  New  Mexico, 
mentioned  in  this  article,  are  those  laid  down  in  the 
map  entitled  "Map  of  the  United  Mexican  States,  as 
organized  and  defined  by  various  Acts  of  the  Congress 
of  said  Republic,  and  constructed  according  to  the  best 
Authorities.  Revised  edition.  Published  at  New  York, 
in  1847,  by  J.  Disturnell."  Of  which  map  a  copy  is 
added  to  this  Treaty,  bearing  the  signatures  and  seah 
of  the  undersigned  plenipotentiaries.  And,  in  order 
to  preclude  all  difficulty  in  tracing  upon  the  ground  tl:c 
limit  separating  Upper  from  Lower  California,  it  \^ 
agreed  that  the  said  limit  shall  consist  of  a  straigut 
line  drawn  from  the  middle  of  the  Rio  Gila,  where  it 
unites  with  the  Colorado,  to  a  point  on  the  coast  of  the 
Pacific  Ocean  distant  one  marine  league  due  south  of 
the  southernmost  point  of  the  port  of  San  Diego,  ac- 
cording to  the  plan  of  siaid  port  made  in  the  year  1782 
by  Don  Juan  Pantoja,  second  sailing-master  of  the 
Spanish  fleet,  and  published  at  Madrid  in  the  year 
1802,  in  the  Atlas  to  the  voyage  of  the  schooners  Sutil 
and  Mexicana,  of  which  plan  a  copy  is  hereunto  added, 
signed  and  sealed  by  the  respective  plenipotentiaries. 

In  order  to  designate  the  boundary  line  with  due  pre- 
cision, upon  authoritative  maps,  and  to  establish  upon 
the  ground  landmarks  which  shall  show  the  limits  of 
both  republics,  as  described  in  the  present  article,  the 


699  TREATY   OF   GUADALUPE    HIDALGO.  Art.  VI 

two  governments  shall  each  appoint  a  commissioner  and 
a  surveyor,  who,  before  the  expiration  of  one  year 
from  the  date  of  the  exchange  of  ratifications  of  this 
treaty,  shall  meet  at  the  port  of  San  Diego  and  proceed 
to  run  and  mark  the  said  boundary  in  its  whole  course 
to  the  mouth  of  the  Rio  Bravo  del  Norte.  They  shall 
keep  journals  and  make  out  plans  of  their  operations; 
and  the  result  agreed  upon  by  them  shall  be  deemed 
a  part  of  this  Treaty,  and  shall  have  the  same  force  as 
if  it  were  inserted  therein.  The  two  governments  will 
amicably  agree  regarding  what  miay  be  necessary  to 
these  persons,  and  also  as  to  their  respective  escorts, 
should  such  be  necessary. 

The  boundary  line  established  by  this  article  shall 
be  religiously  respected  by  each  of  the  two  republics, 
and  no  change  shall  ever  be  made  therein,  except  by 
the  express  and  free  consent  of  both  nations,  lawfully 
given  by  the  general  government  of  each,  in  conformity 
with  its  own  constitution. 

ARTICLE  VI. 

The  vessels  and  citizens  of  the  United  States  shall, 
in  all  time,  have  a  free  and  uninterrupted  passage  by 
the  Gulf  of  California,  and  by  the  river  Colorado  be- 
low its  confluence  with  the  Gila,  to  and  from  their 
I)ossessions  situated  north  of  the  boundary  line  defined 
in  the  preceding  article;  it  being  understood  that  this 


Art.  VII  TREATY   OF    GUADALUPE   niDALGO.  700 

passage  is  to  be  by  navigating  tlie  Gulf  of  California 
and  the  river  Colorado,  and  not  by  land,  without  the 
express  consent  of  the  Mexican  government. 

If,  by  the  examinations  which  may  be  made,  it  should 
be  ascertained  to  be  practicable  and  advantageous  to 
construct  a  road,  canal,  or  railway,  which  should  in 
whole  or  part  run  upon  the  river  Gila,  or  upon  its  right 
or  its  left  bank,  within  the  space  of  one  marine  league 
from  either  margin  of  the  river,  the  governments  of 
both  republics  will  form  an  agreement  regarding  its 
construction,  in  order  that  it  may  serve  equally  for  the 
use  and  advantage  of  both  countries. 

ARTICLE  VII. 

The  river  Gila,  and  the  part  of  the  Rio  Bravo  del 
Norte  lying  below  the  southern  boundary  of  New  Mex- 
ico being,  agreeably  to  the  fifth  article,  divided  in  the 
middle  between  the  two  republics,  the  navigation  of 
the  Gila  and  of  the  Bravo  below  said  boundary  shall  be 
free  and  common  to  the  vessels  and  citizens  of  both 
countries;  and  neither  shall,  without  the  consent  of  the 
other,  construct  any  work  that  may  impede  or  inter- 
rupt, in  whole  or  in  part,  the  exercise  of  this  right; 
not  even  for  the  purpose  of  favoring  new  methods  of 
navigation.  Nor  shall  any  tax  or  contribution,  under 
any  denomination  or  title,  be  levied  upon  vessels  or 
persons  navigating  the  same,  or  upon  merchandise  or  ef- 


701  TREATY    OF    GUADALUPE   HIDALGO.       Art.  VIII 

fects  trausportcd  thereon,  except  in  the  case  of  landing 
npon  one  of  their  shores.  If,  for  the  purpose  of  mak- 
ing the  said  rivers  navigable,  or  for  maintaining  them 
in  such  state,  it  should  be  necessary  or  advantageous 
to  establish  any  tax  or  contribution,  this  shall  not  be 
done  without  the  eonsent  of  both  governments. 

The  stipulations  contained  in  the  present  article  shall 
not  impair  the  territorial  rights  of  either  ■  republic 
within  its  established  limits. 

ARTICLE  VIII. 

Mexicans  now  established  in  territories  previously 
belonging  to  Mexico,  and  which  remain  for  the  future 
within  the  limits  of  the  United  States,  as  defined  by  the 
present  Treaty,  shall  be  free  to  continue  where  they 
now  reside,  or  to  remove  at  any  time  to  the  Mexican 
Republic,  retaining  the  property  which  they  possess  in 
the  said  territories,  or  disposing  thereof,  and  removing 
the  proceeds  wherever  they  please,  without  their  being 
subjected,  on  this  account,  to  any  contribution,  tax,  or 
charge  whatever. 

Those  who  shall  prefer  to  remain  in  the  said  terri- 
tories, may  cither  retain  the  title  and  rights  of  Mexican 
citizens,  or  acquire  those  of  citizens  of  the  United 
States.  But  they  shall  be  under  the  obligation  to  make 
their  election  within  one  year  from  the  date  of  the  ex- 
change of  ratifications  of  this  Treaty;  and  those  who 


Arts.  IX,  X      TREATY   OF    GUADALUPE   HIDALGO.  702 

sliall  remain  in  the  said  territories  after  the  expiration 
of  that  year,  without  having  declared  their  intention 
to  retain  the  character  of  Mexicans,  shall  be  considered 
to  have  elected  to  become  citizens  of  the  United  States. 
In  the  s^aid  territories,  property  of  every  kind,  now 
belonging  to  Mexicans  not  established  there,  shall  be. 
inviolably  respected.  The  present  owners,  the  heirs  of 
these,  and  all  Mexicans  who  may  hereafter  acquire  said 
property  by  contract,  shall  enjoy,  with  respect  to  it, 
guarantees  equally  ample  as  if  the  same  belonged  to 
citizens  of  the  United  States. 

ARTICLE  IX. 
The  Mexicans  who,  in  the  territories  aforesaid,  shall 
not  preserve  the  character  of  citizens  of  the  Mexican 
Republic,  conformably  with  what  is  stipulated  in  the 
preceding  article,  shall  be  incorporated  into  the  Union 
of  the  United  States  and  be  admitted  at  the  proper  time 
(to  be  judged  of  by  the  Congress  of  the  United  States) 
to  the  enjoyment  of  all  the  rights  of  citizens  of  the 
United  States  according  to  the  principles  of  the  consti- 
tution; and  in  the  meantime  shall  be  maintained  and 
protected  in  the  free  enjoyment  of  their  liberty  and 
property,  and  secured  in  the  free  exercise  of  their  re- 
ligion without  restriction. 

ARTICLE  X. 

[Stricken  out.] 


703  TREATY   OF   GUADALUPE   HIDALGO.  Art.  XI 

ARTICLE  XI. 

Considering  that  a  great  part  of  the  territories  which, 
by  the  present  treaty,  are  to  be  comprehended  for  the 
future  within  the  limits  of  the  United  States,  is  now 
occupied  by  savage  tribes,  who  will  hereafter  be  under 
the  exclusive  control  of  the  government  of  the  United 
States,  and  whose  incursions  within  the  territory  of 
Mexico  would  be  prejudicial  in  the  extreme,  it  is  sol- 
emnly agreed  that  all  such  incursions  shall  be  forcibly 
restrained  by  the  government  of  the  United  States  when- 
soever this  may  be  necessary;  and  that,  when  they  can- 
not be  prevented,  they  shall  be  punished  by  the  said 
government,  and  satisfaction  for  the  same  shall  be  ex- 
acted— all  in  the  same  waj^,  and  with  equal  diligence 
and  energy,  as  if  the  same  incursions  were  meditated  or 
committed  within  its  own  territory  against  its  own 
citizens. 

It  shall  not  be  lawful,  under  any  pretext  whatever, 
for  any  inhabitant  of  the  United  States  to  purchase  or 
acquire  any  Mexican,  or  any  foreigner  residing  in  Mex- 
ico, who  may  have  been  captured  by  Indians  inhabiting 
the  territory  of  either  of  the  two  republics,  nor  to  pur- 
chase or  acquire  horses,  mules,  cattle,  or  property  of 
any  kind,  stolen  within  Mexican  territory  by  such 
Indians. 

And  in  the  event  of  any  person  or  persons,  captured 
within  Mexican  territory  by  Indians,  being  carried  into 


Art.  XI  TREATY   OP   GUADALUPE   HIDALGO.  701 

the  territory  of  the  United  States,  the  government  of  the 
latter  engages  and  binds  itself  in  the  most  solemn  man- 
ner, so  soon  as  it  shall  know  of  such  captives  being 
within  its  territory,  and  shall  be  able  so  to  do,  through 
the  faithful  exercise  of  its  influence  and  power,  to  res- 
cue them,  and  return  them  to  their  country,  or  deliver 
them  to  the  agent  or  representative  of  the  Mexican  gov- 
ernment. The  Mexican  authorities  will,  as  far  as  prac- 
ticable, give  to  the  government  of  the  United  States  no- 
tice of  such  captures;  and  its  agent  shall  pay  the 
expenses  incurred  in  the  maintenance  and  transmission 
of  the  rescued  captives ;  who,  in  the  mean  time,  shall  be 
treated  with  the  utmost  hospitality  by  the  American 
authorities  at  the  place  where  they  may  be.  But  if  the 
government  of  the  United  States,  before  receiving  such 
notice  from  Mexico,  should  obtain  intelligence,  through 
any  other  channel,  of  the  existence  of  Mexican  captives 
Avithin  its  territory,  it  will  proceed  forthwith  to  effect 
their  release  and  delivery  to  the  Mexican  agent  as  above 
stipulated. 

For  the  purpose  of  giving  to  these  stipulations  the 
fullest  possible  efficacy,  thereby  affording  the  security 
and  redress  demanded  by  their  true  spirit  and  intent, 
the  government  of  the  United  States  will  now  and  here- 
after pass,  without  unnecessary  delay,  and  always  vigi- 
lantly enforce,  such  laws  as  the  nature  of  the  subject 
may  require.  And  finally,  the  sacredness  of  this  obliga- 
tion shall  never  be  lost  sight  of  by  the  said  government 


705  TREATY   OF   GUADALUPE   niDALGO.         Alt.  XII 

when  providing  for  the  removal  of  the  Indians  from 
any  portion  of  the  said  territories,  or  for  its  being  set- 
tled by  citizens  of  the  United  States;  but  on  the  con- 
trary, special  care  shall  then  be  taken  not  to  place  its 
Indian  occupants  under  the  necessity  of  seeking  new 
homes,  by  committing  those  invasions  which  the  United 
States  have  solemnly  obliged  themselves  to  restrain. 

ARTICLE  XII. 

In  consideration  of  the  extension  acquired  by  the 
boundaries  of  the  United  States,  as  defined  in  the  fifth 
article  of  the  present  Treaty,  the  government  of  the 
United  States  engages  to  pay  to  that  of  the  Mexican 
Republic  the  sum  of  fifteen  millions  of  dollars. 

Immediately  after  this  Treaty  shall  have  been  duly 
ratified  by  the  government  of  the  Mexican  Republic, 
the  sum  of  three  millions  of  dollars  shall  be  paid  to  the 
said  government  by  that  of  the  United  States,  at  the 
city  of  Mexico,  in  the  gold  or  silver  coin  of  Mexico. 
The  remaining  twelve  millions  of  dollars  shall  be  paid 
at  the  same  place,  and  in  the  same  coin,  in  annual  in- 
stallments of  three  millions  of  dollars  each,  together 
with  interest  on  the  same  at  the  rate  of  six  per  centum 
per  annum.  This  interest  shall  begin  to  run  upon  the 
whole  sum  of  twelve  millions  from  the  day  of  the  ratifi- 
cation of  the  present  Treaty  by  the  Mexican  govern- 
ment, and  the  first  of  the  installments  shall  be  paid  at 

Constitution — 45 


Arts.  XIII,  XIV      TREATY   OF    GUADALUPE   HIDALGO.       706 

the  expiration  of  one  year  from  the  same  day.  Together 
with  each  annual  installment,  as  it  falls  due,  the  whole 
interest  accruing  on  such  instalment  from  the  beginning 
shall  also  be  paid. 

ARTICLE  XIII. 

The  United  States  engage,  moreover,  to  assume  and 
pay  to  the  claimants  all  the  amounts  now  due  them,  and 
those  hereafter  to  become  due,  by  reason  of  the  claims 
already  liquidated,  and  decided  against  the  Mexican 
Republic,  under  the  conventions  between  the  two  repub- 
lics severally  concluded  on  the  eleventh  day  of  April, 
eighteen  hundred  and  thirty-nine,  and  on  the  thirtieth 
day  of  January,  eighteen  hundred  and  forty-three;  so 
that  the  Mexican  Republic  shall  be  absolutely  exempt 
for  the  future  from  all  expense  whatever  on  account  of 
the  said  claims. 

ARTICLE  XIV. 

The  United  States  do  furthermore  discharge  the  Mex- 
ican Republic  from  all  claims  of  citizens  of  the  United 
States,  not  heretofore  decided  against  the  Mexican  gov- 
ernment, which  may  have  arisen  previously  to  the  date 
of  the  signature  of  this  Treaty;  which  discharge  shall 
be  final  and  perpetual,  whether  the  said  claims  be  re- 
jected or  be  allowed  by  the  board  of  commissioners  pro- 
vided for  in  the  following  article,  and  whatever  shall  be 
the  total  amount  of  those  allowed. 


707  TREATY   OF   GUADALUPE   HIDALGO.  Art.  XV 

ARTICLE  XV. 

The  United  States,  exonerating  JMexico  from  all  de- 
mands on  account  of  the  claims  of  their  citizens  men- 
tioned in  the  preceding  article,  and  considering  them  en- 
tirely and  forever  cancelled,  whatever  their  amount 
may  be,  undertake  to  make  satisfaction  for  the  same,  to 
an  amount  not  exceeding  three  and  one  quarter  millions 
of  dollars.  To  ascertain  the  validity  and  amount  of 
those  claims,  a  board  of  commissioners  shall  be  estab- 
lished by  the  government  of  the  United  States,  whose 
awards  shall  be  final  and  conclusive ;  provided  that,  in 
deciding  upon  the  validity  of  each  claim,  the  board  shall 
be  guided  and  governed  by  the  principles  and  rules  of 
decision  prescribed  by  the  first  and  fifth  articles  of  the 
unratified  convention,  concluded  at  the  city  of  Mexico  on 
the  twentieth  day  of  November,  one  thousand  eight  hun- 
dred and  forty-three ;  and  in  no  case  shall  an  award  be 
made  in  favor  of  any  claim  not  embraced  by  these  prin- 
ciples and  rules. 

If,  in  the  opinion  of  the  said  board  of  commissioners, 
or  of  the  claimants,  any  books,  records,  or  documents 
in  the  possession  or  power  of  the  government  of  the 
Mexican  Republic,  shall  be  deemed  necessary  to  the  just 
decision  of  any  claim,  the  commissioners,  or  the  claim- 
ants through  them,  shall,  within  such  period  as  Con- 
gress may  designate,  make  an  application  in  writing  for 
the  same,  addressed  to  the  Mexican  Minister  for  Foreign 


Arts.  XVI,  XVII      TREATY   OF   GUADALUPE  HIDALGO.      708 

Affairs,  to  be  transmitted  by  the  Secretary  of  State  of 
the  United  States;  and  the  Mexican  government  en- 
gages, at  the  earliest  possible  moment  after  the  receipt 
of  such  demand,  to  cause  any  of  the  books,  records,  or 
documents,  so  specified,  which  shall  be  in  their  posses- 
sion or  power  (or  authenticated  copies  or  extracts  of  the 
same),  to  be  transmitted  to  the  said  Secretary  of  State, 
who  shall  immediately  deliver  them  over  to  the  said 
board  of  commissioners;  provided^  that  no  such  appli- 
cation shall  be  made  by,  or  at  the  instance  of,  any 
claimant,  until  the  facts  which  it  is  expected  to  prove 
by  such  books,  records,  or  documents,  shall  have  been 
stated  under  oath  or  affirmation. 

ARTICLE  XVI. 

Each  of  the  contracting  parties  reserves  to  itself  the 
entire  right  to  fortify  whatever  point  within  its  terri- 
tory it  may  judge  proper  so  to  fortify,  for  its  security. 

ARTICLE  XVII. 

The  Treaty  of  amity,  commerce,  and  navigation,  con- 
cluded at  the  city  of  Mexico  on  the  fifth  day  of  April, 
A.  D.  1831,  between  the  United  States  of  America  and 
the  United  Mexican  States,  except  the  additional  article, 
and  except  so  far  as  the  stipulations  of  the  said  Treaty 
may  be  incompatible  with  any  stipulation  contained  in 
the  present  Treaty,  is  hereby  revived  for  the  period  of 


70ff  TREATY   OF   GUADALUPE   HID.VLGO,      Art.  XVIII 

eight  years  from  the  day  of  the  exchange  of  ratifications 
of  this  Treaty,  with  the  same  force  and  virtue  as  if  in- 
corporated therein ;  it  being  understood  that  each  of  the 
contracting  parties  reserves  to  itself  the  right,  at  any 
time  after  the  said  period  of  eight  years  shall  have  ex- 
pired, to  terminate  the  same  by  giving  one  year's  notice 
of  such  intention  to  the  other  party. 

ARTICLE  XVIII. 

All  supplies  whatever  for  troops  of  the  United  States 
in  Mexico,  arriving  at  ports  in  the  occupation  of  such 
troops  previous  to  the  final  evacuation  thereof,  although 
subsequently  to  the  restoration  of  the  custom-houses  at 
such  ports,  shall  be  entirely  exempt  from  duties  and 
charges  of  any  kind;  the  government  of  the  United 
States  hereby  engaging  and  pledging  its  faith  to  estab- 
lish, and  vigilantly  to  enforce  all  possible  guards  for 
securing  the  revenue  of  Mexico,  by  preventing  the  im- 
portation, under  cover  of  this  stipulation,  of  any  arti- 
cles other  than  such,  both  in  kind  and  in  quantity,  as 
shall  really  be  wanted  for  the  use  and  consumption  of 
the  forces  of  the  United  States  during  the  time  they 
may  remain  in  Mexico.  To  this  end,  it  shall  be  the 
duty  of  all  officers  and  agents  of  the  United  States  to 
denounce  to  the  Mexican  authorities  at  the  respective 
ports  any  attempts  at  a  fraudulent  abuse  of  this  stipula- 
tion which  they  may  know  of  or  may  have  reason  to  sus- 


Art.  XIX       TREATY    OF   GUADALUPE    HIDALGO.  710 

pect,  and  to  give  to  such  authorities  all  the  aid  in  their, 
power  with  regard  thereto ;  and  every  such  attempt, 
when  duly  proved  and  established  by  sentence  of  a  com- 
petent tribunal,  shall  be  punished  by  the  confiscatiou 
of  the  property  so  attempted  to  be  fraudulently  intro- 
duced. 

ARTICLE  XIX. 

"With  respect  to  all  merchandise,  effects,  and  property 
whatsoever,  imported  into  ports  of  Mexico  whilst  in  the 
occupation  of  the  forces  of  the  United  States,  whether 
by  citizens  of  either  republic,  or  by  citizens  or  subjects 
of  any  neutral  nation,  the  following  rules  shall  be 
observed : 

1.  All  such  merchandise,  effects,  and  property,  if  im- 
ported previously  to  the  restoration  of  the  custom-houses 
to  the  Mexican  authorities,  as  stipulated  for  in  the  third 
article  of  this  Treaty,  shall  be  exempt  from  confiscation,, 
although  the  importation  of  the  same  be  prohibited  by 
the  Mexican  tariff. 

2.  The  same  perfect  exemption  shall  be  enjoyed  by 
all  such  merchandise,  effects,  and  property,  imported 
subsequently  to  the  restoration  of  the  custom-houses,  and 
previously  to  the  sixty  days  fixed  in  the  following  arti- 
cle for  the  coming  into  force  of  the  Mexican  tariff  at 
such  ports  respectively ;  the  said  merchandise,  effects, 
and  property  being,  however,  at  the  time  of  their  im- 


711  TREATY   OF    GUADALUPE   HIDALGO.        Art.  XIX 

portation,  subject  to  the  payment  of  duties,  as  provided 
for  in  the  said  following  article, 

3.  All  merchandise,  effects,  and  property  described  in 
the  two  rules  foregoing  shall,  during  their  continuance 
at  the  place  of  importation,  and  upon  their  leaving  such 
place  for  the  interior,  be  exempt  from  all  duty,  tax,  or 
impost  of  every  kind,  under  whatsoever  title  or  denom- 
ination. Nor  shall  they  be  there  subjected  to  any  charge 
whatsoever  upon  the  sale  thereof. 

4.  All  merchandise,  effects,  and  property  described  in 
the  first  and  second  rules,  which  shall  have  been  re- 
moved to  any  place  in  the  interior  whilst  such  place 
was  in  the  occupation  of  the  forces  of  the  United 
States,  shall,  during  their  continuance  therein,  be  exempt 
from  all  tax  upon  the  sale  or  consumption  thereof,  and 
from  every  kind  of  impost  or  contribution,  under  what- 
soever title  or  denomination. 

5.  But  if  any  merchandise,  effects,  or  property  de- 
scribed in  the  first  and  second  rules,  shall  be  removed 
to  any  place  not  occupied  at  the  time  by  the  forces  of 
the  United  States,  they  shall,  upon  their  introduction 
into  such  place,  or  upon  their  sale  or  consumption  there, 
be  subject  to  the  same  duties  which,  under  the  Mexican 
laws,  they  would  be  required  to  pay  in  such  cases  if 
tney  had  been  imported  in  time  of  paece,  through  the 
maritime  custom-houses,  and  had  there  paid  the  duties 
conformably  with  the  Mexican  tariff. 


Art.  XX  TREATY   OF   GUADALUPE   HIDALGO.  712 

G.  The  owners  of  all  merchandise,  effects,  or  property 
described  in  the  first  and  second  rules,  and  existing  in 
any  port  of  IMexico,  shall  have  the  right  to  reship  the 
same,  exempt  from  all  tax,  impost,  or  contribution 
whatever. 

With  respect  to  the  metals,  or  other  property,  ex- 
ported from  any  Mexican  port  whilst  in  the  occupation 
of  the  forces  of  the  United  States,  and  previously  to  the 
restoration  of  the  custom-house  at  such  port,  no  person 
shall  be  required  by  the  Mexican  authorities,  whether 
general  or  state,  to  pay  any  tax,  duty,  or  contribution 
upon  any  such  exportation,  or  in  any  manner  to  ac- 
count for  the  same  to  the  said  authorities. 

ARTICLE  XX. 

Through  consideration  for  the  interests  of  commerce 
generally,  it  is  agreed,  that  if  less  than  sixty  days 
should  elapse  between  the  date  of  the  signature  of  this 
Treaty  and  the  restoration  of  the  custom-houses  con- 
formably with  the  stipulation  in  the  third  article,  in 
such  case  all  merchandise,  effects,  and  property  whatso- 
ever, arriving  at  the  Mexican  ports  after  the  restora- 
tion of  the  said  custom-houses,  and  previously  to  the 
expiration  of  sixty  days  after  the  signature  of  this 
Treaty,  shall  be  admitted  to  entry ;  and  no  other  duties 
shall  be  levied  thereon  than  the  duties  established  by 
the  tariff  found  in  force  at  such  custom-houses  at  the 


713  TREATY   OF   GUADALUPE   HIDALGO.        Art.  XXI 

time  of  the  restoration  of  the  same.  And  to  all  such 
merchandise,  effects,  and  property,  the  rules  established 
by  the  preceding  article  shall  apply. 

ARTICLE  XXI. 

If  unhappily  any  disagreement  should  hereafter  arise 
between  the  governments  of  the  two  republics,  whether 
with  respect  to  the  interpretation  of  any  stipulation  in 
this  Treaty,  or  with  respect  to  any  other  particular  con- 
cerning the  political  or  commercial  relations  of  the  two 
nations,  the  said  governments,  in  the  name  of  those 
nations,  do  promise  to  each  other  that  they  will  en- 
deavor, in  the  most  sincere  and  earnest  manner,  to  set- 
tle the  differences  so  arising,  and  to  preserve  the  state 
of  peace  and  friendship  in  which  the  two  countries  are 
now  placing  themselves ;  using,  for  this  end,  mutual 
representations  and  pacific  negotiations.  And  if,  by 
these  means,  they  should  not  be  enabled  to  come  to  an 
agreement,  a  resort  shall  not,  on  this  account,  be  had  to 
reprisals,  aggression,  or  hostility  of  any  kind,  by  the 
one  republic  against  the  other,  until  the  government  of 
that  which  deems  itself  aggrieved  shall  have  maturely 
considered,  in  the  spirit  of  peace  and  good  neighbor- 
ship, whether  it  would  not  be  better  that  such  differ- 
ence should  be  settled  by  the  arbitration  of  commission- 
ers appointed  on  each  side,  or  by  that  of  a  friendly 
nation.     And  should  such  course  be  proposed  by  either 


Art.  XXII     TRR.V.TY   OF   GUADALUPE   HID-\X,GO.  714 

party,  it  shall  be  acceded  to  by  the  other,  unless  deemed 
by  it  altogether  incompatible  ^vith  the  nature  of  the  dif- 
ference, or  the  circumstances  of  the  case. 

AETICLE  XXII. 

If  (which  is  not  to  be  expected,  and  which  God  for- 
bid!) war  should  unhappily  break  out  between  the  two 
republics,  they  do  now,  with  a  view  to  such  calamity, 
solemnly  pledge  themselves  to  each  other  and  to  the 
world,  to  observe  the  following  rules,  absolutely,  where 
the  nature  of  the  subject  permits,  and  as  closely  as  possi- 
ble in  all  cases  where  such  absolute  obser\^ance  shall  be 
impossible. 

1.  The  merchants  of  either  republic  then  residing  in 
the  other  shall  be  allowed  to  remain  twelve  months  (for 
those  dwelling  in  the  interior),  and  six  months  (for 
those  dwelling  at  the  seaports),  to  collect  their  debts  and 
settle  their  affairs ;  during  which  periods,  they  shall  en- 
joy the  same  protection,  and  be  on  the  same  footing,  in 
all  respects,  as  the  citizens  or  subjects  of  the  most 
friendly  nations ;  and,  at  the  expiration  thereof,  or  at  any 
time  before,  they  shall  have  fuU  liberty  to  depart,  carry- 
ing off  all  their  effects  without  molestation  or  hindrance: 
conforming  therein  to  the  same  laws  which  the  citizens  or 
subjects  of  the  most  friendly  nations  are  required  to  con- 
form to.  Upon  the  entrance  of  the  armies  of  either  na- 
tion into  the  territories  of  the  other,  women  and  children, 


715  TKF-VTY  OF  GVAP^VLVFE  HIPALOO.      Art.  XXII 

ivolesiastios.  soholars  of  every  faculty,  cultivators  of  the 
earth,  mereliauts.  artisans,  mauiifacturers,  and  tishermen, 
tinarmeil  luul  inhabiting  nnfortitied  towns,  villages,  or 
places,  and  iu  general  all  persons  Avhose  oeenpations  are 
for  the  common  sul^sistence  and  beneiit  of  mankind. 
shall  be  allowed  to  continue  their  respeetive  employments 
unmolested  in  their  persons.  Nor  shall  their  houses 
or  gvvds  W  burnt  or  otherwise  destroyed,  nor  their 
cattle  taken,  nor  their  lields  wasted  by  the  armed  forvv 
into  wluvse  power,  by  the  events  of  war.  they  may  happen 
to  fall :  but  if  the  necessity  arise  to  t^*»ke  anything  from 
them  for  the  use  of  such  armed  force,  the  same  shall  be 
p.iid  for  at  {Ui  eipiitable  price.  All  churches,  hospit^ils, 
schools,  collegt^st,  libraries,  and  other  establishments  for 
charitable  and  Ivneticent  xmrpv>ses,  shall  be  respected, 
and  all  persons  connected  with  the  same  prv^tecteil  in  the 
discharge  of  their  duties  and  the  pursuit  of  their  vooa- 
ti.vis. 

2.  In  orvlcr  that  the  f.ite  of  prisv^ners  of  war  may  lv> 
.illeviateil.  all  such  practices  as  those  of  sending  them 
into  distatit,  inclement,  or  unwholesome  districts,  or 
crvnvding  them  into  close  and  noxious  places,  shall  be 
.studiously  avoidtHl.  They  shall  not  be  contineil  in  dun- 
geons, prison-shi^vs.  or  prisi>ns;  nor  be  put  iu  ir\>ns.  or 
Ivund.  or  otherwise  restraineil  in  the  use  of  their  limits, 
rhe  otVu'crs  shall  enjoy  liberty  on  their  parv>les,  within 
iHMivenient  districts,  and  have  contfortable  quarters:  and 
the  comuion  soldiers  shall   N>   disiH^stsl   in  cantonments. 


Art.  XXII     TI^EATT    OF    GUADALUPE    HIDALGO.  716 

open  and  extensive  enough,  for  air  and  exercise,  and 
lodged  in  barracks  as  roomy  and  good  as  are  provided  by 
the  party  in  whose  power  they  are,  for  its  own  troops. 
But  if  any  officer  shall  break  his  parole  by  leaving  the 
district  so  assigned  him,  or  any  other  prisoner  shall  es- 
cape from  the  limits  of  his  cantonment,  after  they  shall 
have  been  designated  to  him,  such  individuals,  officer,  or 
other  prisoner,  shall  forfeit  so  much  of  the  benefit  of  this 
article  as  provides  for  his  liberty  on  parole  or  in  canton- 
ment. And  if  any  officer  so  breaking  his  parole,  or  any 
common  soldier  so  escaping  from  the  limits  assigned 
him,  shall  afterwards  be  found  in  arms,  previously  to  his 
being  regidarly  exchanged,  the  person  so  offending  shall 
be  dealt  with  according  to  the  established  laws  of  war. 
The  officers  shall  be  daily  furnished  by  the  party  in 
whose  power  they  are.  with  as  many  rations,  and  of  the 
same  articles,  as  are  allowed,  either  in  kind  or  by  commu- 
tation, to  officers  of  equal  rank  in  its  own  army ;  and  aU 
others  shall  be  daily  furnished  with  such  ration  as  is 
allowed  to  a  common  soldier  in  its  own  service :  the 
value  of  all  which  supplies  shall,  at  the  close  of  the  war, 
or  at  periods  to  be  agreed  upon  between  the  respective 
commanders,  be  paid  by  tlie  other  party,  on  a  mutual  ad- 
justment of  aeccunts  for  the  subsistence  of  prisoners; 
and  such  accounts  shall  not  be  mingled  with  or  set  off 
against  any  others,  nor  the  balance  due  on  them  be  with- 
held, as  a  compensation  or  reprisal  for  any  cause  what- 
ever, real  or  pretended.     Each  party  shall  be  allowed  to 


717  TREATY  OF  GUADALUPE  HIDALGO.      Art.  XXIII 

keep  a  commissary  of  prisoners,  appointed  by  itself,  with 
every  cantonment  of  prisoners,  in  possession  of  the 
other ;  which  commissary  shall  see  the  prisoners  as  often 
as  he  pleases;  shall  be  allowed  to  receive,  exempt  from 
all  duties  or  taxes,  and  to  distribute,  Avhatever  comforts 
may  be  sent  to  them  by  their  friends ;  and  shall  be  free  to 
transmit  his  reports  in  open  letters  to  the  party  by  whom 
he  is  employed. 

And  it  is  declared  that  neither  the  pretense  that  war 
dissolves  all  treaties,  nor  any  other  whatever,  shall  be 
considered  as  annulling  or  suspending  the  solemn  cove- 
nant contained  in  this  article.  On  the  contrary,  the  state 
of  war  is  precisely  that  for  which  it  is  provided ;  and 
during  which  its  stipulations  are  to  be  as  sacredly  ob- 
served as  the  most  acknowledged  obligations  under  the 
law  of  nature  or  nations. 

ARTICLE  XXIII. 

This  treaty  shall  be  ratified  by  the  President  of  the 
United  States  of  America,  by  and  with  the  advice  and 
consent  of  the  Senate  thereof;  and  by  the  President  of 
the  Mexican  Republic,  with  the  previous  approbation  of 
its  General  Congress;  and  the  ratifications  shall  be  ex- 
changed in  the  city  of  Washington,  or  at  the  seat  of 
government  of  Mexico,  in  four  months  from  the  date  of 
the  signature  hereof,  or  sooner  if  practicable. 

In  faith  whereof,  Ave,  the  respective  plenipotentiaries, 
have  signed  this  treaty  of  peace,  friendship,  limits,  laud 


Art.  XXIII      TREATY  OF  GUADALUPE  HIDALGO.  718 

settlement;  and  have  hereunto  affixed  our  seals  respec- 
tively.    Done  in  quintuplicate  at  the  city  of  Guadalupe 
Hidalgo,  on  the  second  day  of  February  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  forty-eight. 
N.  P.  TRIST,  [l.  s.] 

LUIS  G.  CUEVAS,  [l.  s.] 

BERNARDO  COUTO,        [l.  s.] 
MIGL.  ATRISTAN,  [l.  s.] 

And  whereas  the  said  treaty,  as  amended,  has  been 
duly  ratified  on  both  parts,  and  the  respective  ratifica- 
tions of  the  same  were  exchanged  at  Queretaro  on  the 
thirtieth  day  of  May  last,  by  Ambrose  H.  Sevier  and 
Nathan  Clifford,  Commissioners  on  the  part  of  the  Gov- 
ernment of  the  United  States,  and  by  Senor  Don  Luis 
de  la  Rosa,  Minister  of  Relations  of  the  Mexican  Repub- 
lic, on  the  part  of  that  Government : 

Now,  therefore,  be  it  known,  that  I,  James  K.  Polk, 
President  of  the  United  States  of  America,  have  caused 
the  said  Treaty  to  be  made  public,  to  the  end  that  the 
same  and  every  clause  and  article  thereof  may  be  ob- 
served and  fulfilled  with  good  faith  by  the  United  States 
and  the  citizens  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 
caused  the  seal  of  the  United  States  to  be  affixed. 

Done  at  the  city  of  Washington,  this  fourth  day  of 
July,  one  thousand  eight  hundred  and  forty-eight,  and 


719  TREATY  OP  GUADALUPE  HIDALGO. 

of  the  Independence  of  the  United  States  the  seventy- 
third. 

[L.  s.]  JAMES  K.  POLK. 

By  the  President: 

James  Buchanan, 

Secretary  of  State. 

ARTICLES  REFERRED  TO  IN  THE  FIFTEENTH 
ARTICLE  OF  THE  PRECEDING  TREATY. 

First  and  Fifth  Articles  of  the  unratified  Convention 
heiween  the  United  States  and  the  Mexican  Bepuhlic 
of  the  20th  Nov.  1843. 

ARTICLE  I. 

All  claims  of  citizens  of  the  Mexican  Republic  against 
the  government  of  the  United  States  which  shall  be 
presented  in  the  manner  and  time  hereinafter  expressed, 
and  all  claims  of  citizens  of  the  United  States  against 
the  government  of  the  Mexican  Republic,  which  for 
whatever  cause  were  not  submitted  to,  nor  considered 
nor  finally  decided  by,  th,e  commission,  nor  by  the  arbiter 
appointed  by  the  convention  of  1839,  and  which  shall  be 
presented  in  the  manner  and  time  hereinafter  speci- 
fied, shall  be  referred  to  four  commissioners,  who  shall 
form  a  board,  and  shall  be  appointed  in  the  following 
manner,  that  is  to  say :  Two  commissioners  shall  be  ap- 
pointed by  the  President  of  the  Mexican  Republic,  and 


TREATY  OP  GUADALUPE  HIDALGO.  720 

the  other  two  by  the  President  of  the  United  States,  with 
the  approbation  and  consent  of  the  senate.  The  said 
commissioners,  thus  appointed,  shall,  in  presence  of  each 
other,  take  an  oath  to  examine  and  decide  impartially 
the  claims  submitted  to  them,  and  which  may  lawfully 
be  considered,  according  to  the  proofs  which  shall  be 
presented,  the  principles  of  right  and  justice,  the  law  of 
nations,  and  the  treaties  between  the  two  republics. 

ARTICLE  V. 

All  claims  of  citizens  of  the  United  States  against  the 
government  of  the  Mexican  Republic,  which  were  con- 
sidered by  the  commissioners,  and  referred  to  the  um- 
pire appointed  under  the  convention  of  the  eleventh 
April,  1839,  and  which  were  not  decided  by  him,  shall 
be  referred  to,  and  decided  by,  the  umpire  to  be  ap- 
pointed, as  provided  by  this  convention,  on  the  points 
submitted  to  the  umpire  under  the  late  convention,  and 
his  decision  shall  be  final  and  conclusive.  It  is  also 
agreed,  that,  if  the  respective  commissioners  shall  deem 
it  expedient,  they  may  submit  to  the  said  arbiter  new 
arguments  upon  the  said  claims. 


INDEX. 

Oonstitution — i6  ('^^l) 


INDEX. 

[Eefercnces  are  to  articles,  sections,  and  pages,  respectively.] 


ABANDONED  CHILDREN— state  may  provide  for.  Art.  4,  Sec, 

22,  p.  137. 
ABSENCE — of   governor,    duties    devolve   on   lieutenant-governor, 
5,  16,  p.  191. 
of  chief  justice,  selection  pro  tempore,  6,  2,  p.  200. 
of  judge  from  state,  6,  3,  p.  201. 

of  judicial  officer  when  a  forfeiture  of  office,  6,  9,  p.  253. 
of  citizen,  on  public  business  not  to  affect  residence,  20,  12, 
p.  539. 
ACCOUNT — of  receipts  and  expenditures  to  be  published,  4,  22, 

p.  134. 
ACCOUNTABILITY— of  municipal  officers,  11,  5,  p.  303. 
ACCUSED— rights  of,  1,  13,  p.  23. 

ACQUISITION  OF  PROPERTY— rights  of  aliens,  1,  17,  p.  CI. 
ACT  OF  LEGISLATURE— to  embrace  but  one  subject,  4,  24,  p. 

141. 
ACTION — corporations  may  sue  and  be  sued,  12,  4,  p.  421. 
where  may  be  sued,  12,  14,  p.  428. 

limitation  of,  special  legislation  prohibited,  4,  25,  p.  151. 
real  where  to  be  commenced,  6,  5,  p.  228. 
against   transportation   companies   for  excessive   charges,   12, 

22,  p.  437. 
unaffected  by  adoption  of  constitution,  22,  2,  p.  554. 
ADJOURNMENT  OF  LEGISLATURE— for  want  of  quorum,  4, 
8,  p.  120. 
restriction  on  right  of,  4,  14,  p.  123. 
loss  of  per  diem  by,  4,  14,  p.  123. 
effect  of  on  passage  of  bills,  4,  16,  p.  125. 
power  of  governor  on  disagreement,  5,  11,  p.  188. 
(723) 


724  INDEX. 

ADJUSTMENT     OF    POPULATION— in   legislative    districts, 
Art.  4,  Sec.  G,  p.  117. 

ADMISSION  TO  UNIVERSITY— 9,  9,  p.  288. 

ADOPTION  OF  CHILDREN— special  legislation  prohibited,  4,  25, 
p.  153. 

AFFIDAVIT — required   of  justice   or  judge   on  drawing   salary, 
6,  24,  p.  272. 
to  sustain  issue  of  warrants,  1,  19,  p.  63. 
AFFIRMATION— See  Oath. 

AGED  PERSONS — state  may  provide  for  support  of,  4,  22,  p. 
133. 

AGENT — when  not  to  receive  extra  compensation,  4,  32,  p.  176. 
of  transportation  comj^any,  restrictions  as  to  interests,  12,  18, 
p.  433. 

AGREEMENT  FOR  EXTRA  COMPENSATION— to  public  offi- 
cials, void,  4,  32,  p.  176. 

AGRICULTURAL  COLLEGE— provisions  regarding,  9,  9,  p.  288. 

AGRICULTURAL  SOCIETY— how  to  elect  officers,  12,  11,  p.  426. 

AID  FROM  PUBLIC  FUNDS— to  private  institutions  prohibited, 
4,  22,  p.  133. 
to  religious  sects  prohibited,  4,  30,  p.  171. 

ALAMEDA — two  superior  court  judges  to  be  elected,  6,  6,  p.  248. 
salary  of  judge  of  superior  court,  6,  17,  p.  264. 

ALIENATION  OP  FRANCHISE— not  to  relieve  from  liability, 
12,  10,  p.  425. 

ALIENS  DETRIMENTAL  TO  STATE— protection  from,  19,  1, 

p.  528. 
foreigners  ineligible  to  citizenship  declared  dangerous,  19,  4, 

p.  530. 
their  immigration  to  be  discouraged,  19,  4,  p.  530. 
provision  for  their  removal,  19,  4,  p.  530. 

AMENDATORY  ACTS— title  to,  4,  24,  p.  141. 

AMENDMENTS  TO  BILLS— how  made,  4,  15,  p.  124. 
to  be  printed,  4,  15,  p.  124. 
to  laws,  how  enacted,  4,  24,  p.  141. 
to  city  charter,  how  made,  11,  8,  p.  336. 


INDEX.  725 

AMENDMENTS    TO    CONSTITUTION— may    be    proposed    in 
either  house,  Art.  18,  Sec.  1,  p.  525. 

two-thirds  vote  required,  18,  1,  p.  525. 

to  be  submitted  to  vote  of  people,  18,  1,  p.  525. 

several,  to  be  voted  on  separately,  18,  1,  p.  525. 

if  ratified  by  majority,  part  of  constitution,  18,  1,  p.  525. 
AMERICAN  UNION— state  part  of,  1,  3,  p.  7. 
APPEAL— district  courts  of,  6,  4,  p.  206. 
APPELLATE  JURISDICTION— of  supreme  court,  6,  4,  p.  205. 

of  superior  court,  6,  5,  p.  228. 
APPOINTMENT  AND  REMOVAL— of  board  of  prison  directors, 
10,  1,  p.  293. 

of  warden  and  clerk,  10,  3,  p.  294. 

of  subordinate  oflieers  and  employees,  10,  3,  p.  294. 

of  inspection   officers,   by   municipal   corporations,    11,   14,   p. 
393. 

to  be  according  to  legislative  direction,  20,  4,  p.  535. 
APPORTIONMEIST- of  members  of  legislature,  4,  6,  p.  117. 

of  business  of  superior  courts,  6,  7,  p.  248. 

of  railroad  values  on  assessment,  13,  10,  p.  476. 
APPROPRIATION  BILL — governor  may  veto  separate  items  of, 
4,  16,  p.  126. 

duty  of  governor  as  to,  4,  16,  p.  126. 

what  Lill  to  contain,  4,  29,  p.  171. 

what  prohibited,  4,  30,  p.  128. 

for  specific  purpose  to  contain  but  one  item,  4,  34,  p.  17L 
APPROPRIATION— of  water,  14,  1,  p.  508. 

APPROPRIATIONS — to  eleemosynary  institutions,  pro  rata  to 
counties,  cities,  and  towns,  4,  22,  p.  133. 

for  private  corporations  and  institutions,  4,  22,  p.  133. 

restriction  on  powers  of  legislature,  4,  22,  p.  133. 

for  support  of  orphans,  etc.,  4,  22,  p.  133. 

by  legislature  and  local  governments,  restriction  on,  4,  30,  p. 
171. 
ARCHIVES — all  laws,  official  writings,  and  proceedings  to  be  pre- 
served, 4,  24,  p.  142. 
ARMY — standing  not  to  be  kept,  1,  12,  p.  23. 

exemption  from  taxation,  13,  1^/4,  p.  463. 


726  INDEX. 

AEEEST — members  of  legislature  privileged  from,  Art.  4,  Sec. 
11,  p.  122. 

privilege  of  electors  from,  2,  2,  p.  73. 
ARTinCIAL  LIGHT— right  of  cities  to  regulate  charges,  11,  19, 

p.  403. 
ARTISANS — secured  by  lien  on  property,  20,  15,  p.  540. 

legislation  to  provide  for  enforcement  of,  20,  15,  p.  504. 
ASIATIC  COOLIEISM— a  form  of  slavery,  19,  4,  p.  530. 

forever  prohibited,  19,  4,  p.  398. 
ASSEMBLAGES  OF  PEOPLE— guaranty  as  to,  1,  10,  p.  17. 
ASSEMBLY— legislative  power  vested  in,  4,  2,  p.  113. 

members,  when  and  how  chosen,  4,  3,  p.  115. 

term  of  office,  4,  6,  p.  117. 

number  of  members,  4,  5,  p.  116. 

districts  to  be  formed,  4,  G,  p.  117. 

vacancies,  how  filled,  4,  12,  p.  123. 

to  have  sole  power  of  impeachment,  4,  17,  p.  128. 

compensation  of,  4,  23,  p.  140. 

attachment  of  district  to   form  congressional   district,  4,  27, 
p.  170. 

district  not  to  be  divided,  4,  27,  p.  170. 
ASSEMBLY  DISTRICTS— organization  of,  4,  6,  p.  117. 

each  to  choose  one  member,  4,  6,  p.  117. 

to  be  numbered  from  one  to  eighty,  4,  6,  p.  117. 
ASSESSMENT — appellate  jurisdiction  of  supreme  court,  6,  4,  p. 
205. 

original  jurisdiction  of  superior  courts,  6,  5,  p.  227. 

under  township  organization,  11,  4,  p.  301. 

of  municipal  taxes,  11,  12,  p.  386. 

for  street  improvements,  11,  19,  p.  403. 

to  be  in  proportion  to  benefits,  11,  19,  p.  403. 

of  lands  for  taxes,  13,  2,  p.  464. 

of  lands  sectionized  and  not  sectionized,  13,  3,  p.  465. 

mortgages,  deeds  of  trust,  etc.,  deemed  property,  13,  4,  p.  465. 

of  securities  how  made,  13,  4,  p.  465. 

of  railroads,  13,  14,  p.  465. 

equalization  of,  13,  9,  p.  471. 

property,  where  and  how  assessed,  13,  10,  p.  476. 

of  railroad  franchises,  13,  10,  p.  176. 

apportionment  of  railroad  values,  13,  10,  p.  476. 


INDEX.  727 

ASSESSMENT — securities,  to  whom  assessed,  Art.   13,  Sec.  4, 
p.  465. 
where  to  be  made,  13,  10,  p.  476. 
of  taxes  to  be  under  general  laws,  4,  25,  p.  151. 
for  income  tax,  13,  11,  p.  479. 

See  Taxation. 
ASSETS — of  corporations  to  be  entered  on  books,  12,  14,  p.  428. 

ASSIGNMENT  OF  JUSTICES— to  departments  of  supreme  court, 
6,  2,  p.  200. 

ASSOCIATE  JUSTICES— subject  to  impeachment,  4,  18,  p.  129. 
to  be  assigned  to  departments  cf  supreme  court,  6,  2,  p.  200. 
competent  to  sit  in  cither,  6,  2,  p.  200. 
may  freely  interchange,  6,  2,  p.  200. 
three  necessary  to  transact  business,  6,  2,  p.  200. 
may  act  in  chambers,  6,  2,  p.  200. 
four  may  order  hearing  in  bank,  6,  2,  p.  201. 
when  concurrence  of  four  necessary  to  judgment,  G,  2,  p.  201. 
to  select  one  to  preside,  6,  2,  p.  201. 
when  to  select  chief  justice  pro  tempore,  6,  2,  p.  201. 
time  and  place  of  election,  6,  3,  p.  204. 
term  of  office,  6,  3,  p.  204. 

those  first  elected  to  classify  themselves,  6,  3,  p.  204. 
two  to  be  elected  every  four  years,  6,  3,  p.  204. 
appointment  by  governor  in  case  of  vacancy,  6,  3,  p.  204. 

ASSOCIATION — no    appropriations    if    not   under    state    control, 
4,  22,  p.  133. 
cannot  acquire  rights,  etc.,  by  special  legislation,  4,  25,  p.  152. 
included  in  term  "corporations,"  12,  4,  p.  421. 
vvhere  may  be  sued,  12,  16,  p.  430. 
subject  to  assessment  for  income  tax,  13,  11,  p.  479. 

ASYLUMS — not   under   state  control,   not   entitled   to   appropria- 
tions, 4,  22,  p,  133. 
ATTACHES  OF  LEGISLATURE— compensation  of,  4,  23,  p.  140 
ATTAINDER,  BILLS  OF— prohibited,  1,  16,  p.  54. 
ATTORNEY  GENERAL— subject  to  impeachment,  4,  18,  p.  129. 

mode  and  time  of  election,  5,  17,  p.  191. 

term  of  office,  5,  17,  p.  191. 

duties  of  oflice,  5,  17,  p.  191. 

compensation  of,  5,  19,  p.  193. 


728  INDEX. 

AYES  AND  NOES — on  urgency  for  passage  of  bill,  Art.  4,  Sec. 

15,  p.  124. 
to  be  taken  on  each  bill  separately,  4,  15,  p.  124. 
■when  to  be  entered  on  journal,  4,  10,  p.  121. 
on  removal  of  justices   or  judges,   to  be  entered  on  journal, 

6,  10,  p.  254. 
on  proposed  amendment  to  constitution,  18,  1,  p.  525. 
and  to  be  entered  on  journal,  18,  1,  p.  525. 

BAIL — allowed  on  sufficient  sureties,  1,  6,  p.  9. 

except  in  capital  offenses,  etc.,  1,  6,  p.  9. 

excessive  not  to  be  required,  1,  6,  p.  9. 
BALLOTS— all  elections  to  be  by  ballot,  2,  5,  p.  78. 

for  election  of  new  constitution  to  be   distributed,  22,  5,  p. 
557. 
BANKING — restriction  on  power  of  legislature,  12,  5,  p.  422. 

corporations  may  be  formed  under  general  laws,  12,  5,  p.  422. 

only  lawful  money  of  United  States  to  be  circulated,  12,  5, 
p.  422. 
BASIS — of  representation,  4,  6,  p.  117. 
BIENNIAL — sessions  of  legislature,  4,  2,  p.  116. 
BILLS — limitation  of  time  for  introduction  of,  4,  2,  p.  114. 

now  to  be  put  on  their  passage,  4,  15,  p.  124. 

when  passed  to  be  submitted  to  governor,  4,  16,  p.  125. 

power  of  governor  to  sign  or  disapprove,  4,  16,  p.  125. 

when  to  become  a  law,  4,  16,  p.  125. 

passage  over  veto,  4,  16,  p.  125. 

making  appropriation  to  contain  but  one  item,  4,  34,  p.  178. 
BILLS  OF  ATTAINDER— prohibited,  1,  16,  p.  54. 
BOARD  OF  CANVASSERS— on  new  constitution,  duty  of,  22,  8, 

p.  559. 
BOARD  OF  EDUCATION— to  adopt  text  books,  9,  7,  p.  284. 

to  control  examination  of  teachers,  9,  7,  p.  284. 

and  grant  teachers'  certificates,  9,  7,  p.  284. 

restriction  as  to  power  to  incur  debt,  11,  18,  p.  396. 
BOARD  OF  EQUALIZATION— to  be  elected,  13,  9,  p.  471. 

term  of  office  and  duties  of,  13,  9,  p.  471. 

controller,  a  member  ex  officio,  13,  9,  p.  471. 

authority  of  board,  13,  9,  p.  471. 

supervisors  to  constitute  county  boards,  13,  9,  p.  471. 


INDEX.  729 

BOARD    OP    FREEHOLDERS— election   and    qualification    of, 
Art.  11,  Sec.  8,  p.  336. 
duties  of,  11,  8,  p.  336. 
to  prepare  charter,  11,  8,  p.  336. 
to  prepare  county  charters,  11,  7%,  p.  323. 

BOARD  OF  SUPERVISORS— when  to  adopt  text-books,  9,  7,  p. 
284. 

duty  and  authority  as  to  teachers,  9,  7,  p.  284. 

election  and  appointment  of,  11,  5,  p.  281. 

certain  cities  to  have  two  boards,  11,  7,  p.  320. 

election,  term,  and  classification  of,  11,  7,  p.  320. 

to  be  a  board  of  equalization,  13,  9,  p.  471. 

to  fix  water  rates,  14,  1,  p.  508. 
BONDS— place  of  payment  of,  11,  13^,  p.  392. 

exempt  from  taxation,  13,  1%,  p.  464. 

taxable,  13,  1,  p.  447. 

BONDS  OF  CORPORATIONS— not  to  be  issued  except  for  monej, 
labor,  or  property,  12,  11,  p.  426. 
when  may  be  increased,  12,  11,  p.  426. 

BOOKS  OF  RECORD— to  be  kept  by  corporations,  12,  14,  p.  428. 

what  to  be  entered  on,  12,  14,  p.  428. 

railroad    commissioners   to   prescribe   form   for   accounts,   12, 
22,  p.  437. 
BOUNDARY  OF  STATE— 21,  1,  p.  550. 

BREACH  OF  THE  PEACE— no  privilege  from  arrest,  4,  11,  p. 
122. 

BRIBERY— conviction  for  disfranchises,  20,  11,  p.  538. 

a  disqualification  for  office,  20,  11,  p.  538. 

compulsory  testimony  in  cases  of,  4,  35,  p.  179. 
BRIDGES — special  legislation  prohibited,  4,  25,  p.  151. 
BUSINESS— sex  not  a  disqualification,  20,  18,  p.  547, 
BUTTE  COUNTY— salary  of  judge  of  superior  court,  6,  17,  p. 
263. 

CALIFORNIA  ACADEMY  OF  SCIENCES— property  of  exempt 
from  taxation,  9,  12,  p.  291. 

CALIFOIINIA  SCHOOL  OF  MECHANICAL  ARTS— property  of 
exempt  from  taxation,  9,  11,  p.  291. 


730  INDEX. 

CANAL  COMPANIES— are  common  carriers',  Art.  12,  Sec.  17,  p, 
432. 
officera  of  not  to  be  interested  in  certain  contracts,  12,  18,  p. 
433. 
CAPITAL  OFFENSES— when  not  bailable,  1,  6,  p.  9. 
CAPITAL  STOCK  OF  CORPORATIONS— subject  to  legislative 
control,  4,  26,  p.  167. 
to  be  entered  on  books,  12,  14,  p.  428. 
CAPITATION  TAX— legislature  may  provide  for  a  poll  tax,  13, 
12,  p.  479. 
or  for  income  taxes,  13,  11,  p.  479. 
CEMETERIES— special  legislation  prohibited,  4,  25,  p.  151. 
CENSUS — the  basis  of  adjustment  of  legislative   districts,  4,   6, 

p.  117. 
CERTIORARI— jurisdiction  of  supreme  court,  6,  4,  p.  206. 

or  superior  court,  6,  5,  p.  228. 
CHAMBERS — justice  of  supreme  court  may  act  in,  6,  2,  p.  200. 

judges  of  superior  courts  may  act  in,  6,  14,  p.  262. 
CHANGE  OF  COUNTY  SEAT— to  be  by  general  laws  alone,  4, 

25,  p.  152. 
CHANGE   OF  NAMES — special  legislation  prohibited,  4,  25,   p. 

151. 
CHANGE  OF  PLACE  OF  TRIAL— in  libel  cases,  1,  9,  p.  16. 

in  railroad  cases,  12,  16,  p.  430. 
CHANGE  OF  VENUE — special  acts  prohibited,  4,  25,  p.  151. 
CHARGE  TO  JURY— 6,  19,  p.  266. 

CHARTER — cannot  be  granted  by  special  act,  4,  25,  p.  152. 
for  banking  purposes  prohibited,  12,  5,  p.  422. 
but  corporations  may  form  under  general  laws,  12,  5,  p.  422. 
invalid  for  want  of  organization  under,  12,  6,  p.  422. 
not  to  be  extended,  12,  7,  p.  423. 
nor  forfeiture  remitted,  12,  7,  p.  423. 
business  restricted  to  terms  in,  12,  9,  p.  424. 
CHARTER  OF  MUNICIPAL  CORPORATION— how  obtained,  11, 
8,  p.  336. 
when  and  how  framed,  11,  8,  p.  336. 
board  of  freeholders  may  prepare,  II,  8,  p.  336. 
copy  to  be  deposited  with  secretary  of  state,  11,  8,  p.  336. 
and  a  copy  to  be  recorded,  11,  8,  p.  336. 


INDEX.  731 

CHAPTER  OF  MUNICIPAL  CORPOEATIOlSr— Judicial  notice 
to  be  taken,  Art.  11,  Sec.  8,  p.  336. 

may  be  amended,  11,  8,  p.  336. 

approval  of  three-fifths  of  voters  necessary,  11,  8,  p.  336. 

how  presented  to  voters,  11,  8,  p.  336. 

may  contain  what,  11,  8^2,  P-  360. 
CHIEF  JUSTICE— subject  to  impeachment,  4,  18,  p.  129, 

authority  and  duties  of,  6,  2,  p.  200. 

time  and  place  of  election,  6,  3,  p.  204. 

CHIEF  MAGISTRATE— styled  governor   of  California,   5,  1,  p. 
182. 

CHILDREN — adoption  and  legitimation  of,  4,  25,  p.  153. 

CHINESE— excluded  from  right  of  suffrage,  2,  1,  p.  69. 

legislature  to  provide  for  protection  against,  19,  1,  p.  528. 

to  impose  conditions  on  their  residence,  19,  1,  p.  528. 

to  provide  for  their  removal  from  the  state,  19,  1,  p.  523. 

corporations  prohibited  from  employing,  19,  2,  p.  529. 

municipal  corporations  prohibited  from  employing,  19,  3,  p. 
530. 

not  to  be  employed  on  public  works,  19,  3,  p.  530. 

penalty  to  be  prescribed  for  importing  coolies,  19,  4,  p.  530 

their  immigration  to  be  discouraged,  19,  4,  p.  530. 

power  to  be  delegated  to  cities  and  towns  for  their  removal, 
19,  4,  p.  530. 

provisions  to  prohibit  their  introduction,  19,  4,  p.  530. 

and  to  provide  for  protection  against  evils  of  their  pres- 
ence, 19,  4,  p.  530. 

legislature  to  enforce  constitutional  provisions,  19,  4,  p.  530. 

CHURCH — appropriations  to,  prohibited,  4,  30,  p.  171. 
CITIES — to  share  in  appropriations  to  orphans,  etc.,  4,  22,  p. 
133. 

CITIZENS— rights  of,  1,  9,  p.  16. 

privileges  and  immunities  of,  1,  21,  p.  64. 

right  of  sun'ragc,  2,  1,  p.  69. 

not  to  be  deprived  of  life,  liberty,  etc.,  without  due  process 
of  law,  1,  13,  p.  23. 
CITIZENSHIP— under  Treaty  of  Queretaro,  2,  1,  p.  69. 

lost,  cannot  bo  restored  by  special  act,  4,  25,  p.  152. 


73^ 


INDEX. 


CITY— may  be  divided  into  congressional  districts,  Art.  4,  Sec. 
27,  p.  170. 
officers  to  be  governed  by  general  laws  only,  4,  25,  p.  151. 
what  appropriations  prohibited,  4,  30,  p.  171. 
mode  of  framing  charter,  11,  8,  p.  336. 

board  of  freeholders,  when  may  frame  charter,  11,  8,  p.  336. 
charter,  to  be  published,  11,  8,  p.  336. 
to  be  submitted  to  vote,  11,  8,  p.  336. 
if  ratified  to  be  submitted  to  legislature,  11,  8,  p.  336. 
if  approved,  it  becomes  the  charter,  11,  8,  p.  336. 
protection  from  alien  paupers,  19,  1,  p.  396. 

CITY  AND  COUNTY— right  to  share  in  appropriations  grantina 

aid,  4,  22,  p.  133.  ^ 

not  to  be  divided  in  forming  congressional  district,  4,  27. 

p.  170.  '     '       > 

restriction  on  appropriations,  4,  30,  p.  171. 

governments  may  be  merged  and  consolidated,  11,  7,  p.  320, 

CITY,  COUNTY,  OE  TOWNSHIP— right  to  share  in  appropria- 
tions to  institutions,  4,  22,  p.  133. 
prohibited  from  aiding  religious  sect  or  creed,  4,  30,  p.  171. 
prohibited  from  loaning  or  giving  its  credit,  4,  31,  p.  172. 
inferior  courts  may  be  established  in,  6,  1,  p.  197. 
a  subdivision  of  state,  11,  1,  p.  297. 
may  organize  under  general  laws,  11,  6,  p.  310. 
compensation  of  officers  of,  11,  9,  p.  369. 
not  to  be  released  from  share  of  taxes,  11,  10,  p.  371. 
commutation  of  taxes  prohibited,  11,  10,  p.  371. 
may  enforce  local  police  and  sanitary  regulations.   11    11. 
p.  372.  y       y       > 

legislature  may  vest  power  of  taxation  in,  11,  12,  p.  386. 
to  appoint  inspection  officers,  11,  14,  p.  393. 
money  collected  to  be  paid  into  treasury,  11,  16,  p.  394. 
restriction  as  to  incurring  indebtedness,  11,  18,  p.  396. 
liabilities  of,  when  void,  11,  18,  p.  396, 
to  regulate  water  rates,  14,  1,  p.  508. 
penalty  for  neglect,  14,  1,  p.  508. 
to  be  protected  from  alien  paupers,  etc.,  19,  1,  p.  528. 
to  have  power  to  remove  the  same,  19,  4,  p.  530. 
provisions  for  prohibiting  their  introduction,  19,  4,  p.  530. 

CITY  COUNCILr— to  fix  water  rates,  14,  1,  p.  508. 


INDEX.  733 

CIVIL   ACTIONS— tliree-fourths   of   jury   may   decide,   Art.   1, 
Sec.  1,  p.  11. 

jury  may  be  waived,  1,  7,  p.  11. 

imprisonment  in,  1,  15,  p.  53. 
CIVIL  OFFICERS— trial  of,  for  misdemeanor,  4,  18,  p.  129. 

CLAIMS  AGAINST  STATE  OR  LOCAL  GOVERNMENT— not 
to  be  allowed,  4,  32,  p.  176. 

CLASSIFICATION— of  justices  of  supreme  court,  6,  3,  p.  204. 

of  counties,  11,  5,  p.  303. 

of  senators  at  election  of  1882,  4,  5,  p.  116. 

of  municipal  corporations,  11,  6,  p.  310. 

of  state  prison  directors,  10,  1,  p.  293. 

of  superior  judges  in  San  Francisco,  6,  6,  p.  248. 

of  supervisors,  11,  7,  p.  320, 
CLERICAL  OFFICERS— salary  of,  5,  19,  p.  193. 

CLERICAL   SERVICES— limitation   of   compensation,  5,   19,   p. 

193. 
CLERK — of  supreme  court,  to  be  appointed,  6,  21,  p.  270. 

county  clerk  to  be  ex  officio  clerk  of  courts  of  record,  6,  14, 

p.  261. 
of  state  prison,  appointment  by  board,  10,  3,  p.  294. 
powers  and  duties  of,  to  be  defined,  10,  5,  p.  295. 
of  county,  duty  on  election  for  new  constitution,  22,  6,  p. 
558. 
COGSWELL     POLYTECHNICAL     COLLEGE— exemption     of, 
from  taxation,  9,  13,  p.  292. 

COLLECTION  OF  TAXES— to  be  governed  by  general  laws,  4, 
25,  p.  151. 
of  municipal  taxes,  11,  12,  p.  386. 

COLLEGE — appropriation,  when  prohibited,  4,  30,  p.  171. 
COLLEGE    OP  AGRICULTURE- to    be    supported    and    main- 
tained, 9,  9,  p.  288. 
fund  for  to  be  inviolate,  9,  9,  p.  288. 
COMBINATIONS — between    transportation    companies    prohib- 
ited, 12,  20,  434. 
COMMANDER-IN-CHIEF— of  militia,  5,  5,  p.  184. 
governor  to  continue  as,  5,  16,  p.  190. 


734  INDEX. 

COMMISSIONERS— to  be  elected  or  appointed,  Art.   20,  Sec. 
4,  p.  535. 
term  of  office  of,  20,  16,  p.  542. 

COMMISSIONS— to  be  sealed  and   signed  by  governor,  5.   14, 
p.  189.  '     '       ' 

to  militia  officer  to  be  signed  by  governor,  8,  1,  p.  276. 
COMMITMENT— for  offenses,  1,  8,  p.  14. 

COMMON    CARRIERS— railroads,    canals,    and    transportation 
companies  are,  12,  17,  p.  432. 
subject  to  legislative  control,  12,  17,  p.  432. 
when  not  to  combine  to  share  earnings,  12,  20,  p.  434. 
rates  lowered  cannot  be  raised  without  consent  of  govern- 
ment, 12,  20,  p.  434. 
discriminating  rates  prohibited,  12,  21,  p,  435. 
charges  at  way  stations,  12,  21,  p.  435. 

excursion  and  commutation  tickets  may  be  at  special  rates, 
12,  21,  p.  435. 

See  Railroad  Companies. 
COMMON  SCHOOLS— not  subject  to  local  or  special  acts,  4,  25, 
p.  151. 
source  and  origin  of  funds,  9,  4,  p.  280. 
legislature  to  provide  for  system  of,  9,  5,  p.  2S1. 
system  to  include  primary  and  grammar  schools,  9,  6,  p.  282. 
funds  to  be  applied  exclusively  thereto,  9,  6,  p.  2S2. 
no  sectarian  doctrine  to  be  taught,  9,  8,  p.  233. 
COMMUNICATION  OF  GOVERNOR— to  legislature,  5,   10,  p. 

145. 
COMMUTATION  OF  SENTENCE— power  of  governor,  7,  1,  p. 

287. 
COMMUTATION  OF  TAXES  PROHIBITED— 11,  10,  p.  371. 
COMPENSATION — to  be  first  made  on  taking  property  for  pub- 
lic use,  1,  14,  p.  42. 
of  members  of  legislature,  4,  23,  p.  140. 
in  case  of  adjournment,  4,  14,  p.  123. 
extra  cannot  be  granted,  4,  32,  p.  176. 
of  state  officers  not  to  be  diminished  or  increased,  5,  19   p. 

193. 
of  clerk  of  supreme  court,  6,  21,  p.  270. 
to  justices  and  judges,  6,  17,  p.  263. 
of  justices  to  be  paid  by  state,  6,  17,  p.  263. 
half  salary  of  judges  to  be  paid  by  state,  6,  17,  p.  263. 


INDEX.  735 

COMPENSATION— and  half  by  counties,  Art.  6,  Sec.  17,  p.  263. 
of  board  of  state  prison  directors,  10,  4,  p.  291. 
of  county  officers,  11,  5,  p.  303. 

of  county,  city  and  town  oflicers,  not  to  be  increased,  11,  9, 
p.  369. 

COMPULSORY    PEOCESS— accused    entitled  to  procure    wit- 
nesses, 1,  13,  p.  23. 
on  failure  of  supervisors  to  fix  water  rates,  14,  1,  p.  508. 
CONCUREENCE  NECESSAEY  TO  JUDGMENT  IN  SUPREME 

COUET— 6,  2,  p.  200. 
CONDEMNATION  TO  PUBLIC  USE— See  Eminent  Domain. 

CONDITION   OF   STATE— governor   to   communicate   to   legis- 
lature, 5,  10,  p.  188. 

CONDITIONS    IMPOSED  ON  FOREIGN    CORPORATIONS— 
12,  15,  p.  429. 

CONFESSION  IN  OPEN  COURT— effect  of,  1,  20,  p.  63. 

CONGRESSIONAL  DISTRICTS— how  formed,  4,  27,  p.  170. 
of  contiguous  assembly  districts,  4,  27,  p.  170. 
assembly  district  not  to  be  divided,  4,  27,  p.  170. 

CONSOLIDATION  OF  MUNICIPAL  GOVERNMENTS— to  be 

under  general  laws,  11,  7,  p.  320. 
provisions  applicable,  11,  7,  p.  320. 
two  boards  of  supervisors  to  be  elected,  11,  7,  p.  320. 

CONSTABLE — local  and  special  acts  prohibited,  4,  25,  p.  151. 

CONSTITUTION— of  California  of  1849,  p.  609. 

of  California  of  1879,  p.  1. 

of  the  United  States,  p.  659. 

the  supreme  law,  1,  3,  p.  7. 

provisions  mandatory  and  prohibitory,  1,  22,  p.  66. 

mode  of  amending,  18,  1,  p.  525. 

mode  of  revision,  18,  2,  p.  526. 

when  it  takes  effect,  22,  12,  p.  563. 

submission  to  vote  of  people,  22,  2,  p.  554. 
CONTAGIOUS  DISEASES— protection  from,  19,  1,  p.  528. 
CONTINGENT  EXPENSES— of  legislature,  4,  23,  p.  140. 
CONTRACTOR — when  not  to  receive  extra  compensation,  4,  32, 
p.  176. 


736  INDEX. 

CONTRACTS— obligations  of  not  to  be  impaired,  Art.  1.  Sec. 
16,  p.  54. 
taxation  of,  13,  4,  p.  465. 
existing  not  to  be  affected,  22,  1,  p.  551. 
for  sale  of  stocks  on  margin,  void,  4,  26,  p.  167. 
to  pay  tax  on  loan  or  its  security,  void,  13,  5,  p.  468, 
for  coolie  labor,  void,  19,  4,  p.  530. 
of  marriage,  validity  of,  20,  7,  p.  537. 

CONTROLLER— subject  to  impeachment,  4,  18,  p.  129. 
how  chosen,  5,  17,  p.  191. 
term  of  office,  5,  17,  p.  191. 
compensation  of,  5,  19,  p.  193. 

a  member  ex  officio  of  board  of  equalization,  13,  9,  p.  471. 
to  canvass  returns  of  election  on  revision,  18,  2,  p.  526. 

CONVENTION  FOR  REVISION— how  and  when  formed,  18,  2, 
p.  526.  ' 

of  what  to  consist,  18,  2,  p.  526. 
delegates,  when  to  meet,  18,  2,  p.  526. 
constitution  to  be  submitted  to  vote,  18,  2,  p.  526. 
return  and  proceedings  thereon,  18,  2,  p.  526. 
executive  to  declare  result,  18,  2,  p.  526. 
majority  required  to  ratify,  18,  2,  p.  526. 
proclamation  of  governor,  18,  2,  p.  526. 
legislature  may  provide  for  expenses  of,  20,  19,  p.  548. 

CONVICTION — for  crime  deprives  privilege  of  an  elector,  2,  1, 

p.  69. 
two-thirds  of  senate  to  concur  on,  4,  17,  p.  128. 
for  embezzlement  to  disqualify  for  office,  4,  21,  p.  132. 
for  lobbying,  disfranchises,  4,  35,  p.  179. 
for  offering  bribe  for  election  disqualifies  for  office,  20,  10, 

p.  538. 
for  bribery  and  forgery  disfranchises,  20,  11,  p.  538. 
so  for  malfeasance  in  office  and  for  other  high  crimes    20, 

11,  p.  538. 
reprieve  and  pardon  after,  7,  1,  p.  174. 

CONVICT  LABOR— to  be  regulated  by  legislature,  10,  6,  p.  295. 

excluded  from  right  to  otKce,  4,  21,  p.  132. 

not  to  be  let  out  by  contract,  10,  6,  p.  295. 
CONVICTS— deprived  of  right  to  vote,  2,  1,  p.  69. 

cannot  be  restored  to  citizenship  by  special  act,  4,  25,  p.  151. 


INDEX.  737 

COOLIE  LABOR— contracts  for  void,  Art.  19,  See.  4,  p.  530. 
COOLIEISM— a  form  of  slavery,  prohibited,  19,  4,  p.  530. 
CO-OPERATIVE   SOCIETIES— elections   of   officers,   12,   12,   p. 
427. 

CORPORATIONS — conditions    precedent    to    appropriation    of 

right  of  way,  1,  14,  p.  42. 
when  not  to  receive  state  appropriations,  4,  22,  p.  133. 
cannot  acquire  rights  by  special  legislation,  4,  25,  p.  151. 
liability  of  cannot  be  released  by  special  act,  4,  25,  p.  151. 
sale  of  stock  to  be  controlled  by  legislature,  4,  26,  p.  167. 
state  cannot  subscribe  for  stock  of,  4,  31,  p.  172. 
rates  of  charges  to  be  regulated,  4,  33,  p.  178. 
cannot  select  persons  to  regulate  charges  for  services  and 

materials  furnished,  4,  33,  p.  178. 
to  be  formed  under  general  laws,  12,  1,  p.  411. 
laws  creating  may  be  altered  or  repealed,  12,  1,  p.  411. 
dues  to  be  secured  by  individual  liability,  12,  2,  p.  414. 
stockholder's  liability,  12,  3,  p.  414. 
to  promote  international  expositions,  12,  3,  p.  414. 
term  includes  associations  and  joint-stock  conij^anies,  12,  4, 

p.  421. 
may  sue  and  be  sued,  12,  4,  p.  421. 
where  may  be  sued,  12,  16,  p.  430. 
for  banking  purposes  prohibited,  12,  5,  p.  422. 
cannot  circulate  any  but  lawful  money  of  the  United  States, 

12,  5,  p.  422. 
certain  existing  charters  and  franchises  avoided,   12,  6,  p. 

422. 
existing  charters  not  to  be  extended,  12,  7,  p.  423. 
nor  can  their  forfeiture  be  remitted,  12,  7,  p.  423. 
not  to  injure  rights  of  individuals  or  welfare  of  state,  12,  8, 

p.  424. 
to  be  subject  to  right  of  eminent  domain,  12,  8,  p.  424. 
police  power  over,  not  to  be  abridged,  12,  8,  p.  424. 
limited  to  business  authorized  in  charter,  12,  9,  p.  424, 
restriction  on  tenure  of  real  estate,  12,  9,  p.  424. 
not  relieved  from  liability   by   lease   or  alienation,   12,   10, 

p.  425. 
indebtedness  not  to  bo  increased  under  special  act,  12,  11, 

p.  426. 

Constitution — 47 


738  INDEX. 

CORPORATIONS— restriction  on  issue  of  stock  or  bonds,  Art. 
12,  See.  11,  p.  426. 
notice  required  on  increase  of  stock,  12,  11,  p.  426. 
voting  at  elections  by  stockholders,  12,  12,  p.  427. 
cumulative  vote  allowed,  12,  12,  p.  427. 
or  distributive  vote,  12,  12,  p.  427. 
exception  as  to  co-operative  societies,  12,  12,  p.  427. 
state  not  to  give  or  loan  its  credit  to,  12,  13,  p.  428. 
nor  to  subscribe  to  stock  of,  12,  13,  p.  428. 
to  have  office  within  state,  12,  14,  p.  428. 
religious  and  benevolent  societies  excepted,  12,  14,  p.  428. 
books,  etc.,  to  be  open  to  inspection,  12,  14,  p.  428. 
to  contain  certain  entries,  12,  14,  p.  428. 
foreign  corporations  not  to  be  favored,  12,  15,  p.  429. 
where  may  be  sued,  12,  16,  p.  430. 
place  of  trial  may  be  changed,  12,  16,  p.  430. 
rights  and  liabilities  of  transportation  companies,  12,  17,  p. 

432. 
officers  of,  restrictions  on,  12,  18,  p.  433. 
free  passes  to  officials  prohibited,  12,  19,  p.  434. 
fares  and  freights  to  be  regulated,  12,  20,  p.  434. 
discrimination  in  charges  forbidden,  12,  21,  p.  435. 
forfeiture  of  franchise  for  illegal  water  rates,  14,  1,  p.  508. 
not  to  exclude  right  of  way  in  harbors,  15,  2,  p.  515. 
may  be  assessed  for  income  tax,  13,  11,  p.  479. 
prohibited  from  employing  Chinese,  19,  2,  p.  529. 
penalty  for  introduction  of  coolie  labor,  19,  4,  p.  530. 
See  Railroad  Companies;   Transportation  Companies. 

CORRUPTING  LEGISLATORS— a  felony,  4,  35,  p.  179. 
compulsory  testimony  in  cases  ot,  4,  35,  p.  179. 

COUNTY — right  to  share  in  appropriations,  4,  22,  p.  133. 
place  of  voting  on  organization,  4,  25,  p.  151. 
not  to  be  divided  in  forming  congressional  district,  4,  27, 

p.  170. 
what  appropriations  by  prohibited,  4,  30,  p.  171. 
prohibited  from  loaning  or  giving  its  credit,  4,  31,  p.  172. 
a  subdivision  of  the  state,  11,  1,  p.  297. 
new  counties,  organization  of,  11,  3,  p.  298. 
liability  for  debts,  on  enlargement  of,  11,  3,  p.  298. 
governments  of  counties  to  be  uniform,  11,  4,  p.  301, 
organization  under  townships,  11,  4,  p.  301. 


INDEX.  ,    739 

COUNTY — legislature  to  establish  system  of  governments,  Art. 
11,  Sec.  4,  p.  301. 

boards  of  supervisors  for,  11,  5,  p.  303. 

municipal   corporations   controlled   by   general   laws,    11,   6, 
p.  310. 

city  and  county  governments,  11,  7,  p.  320. 

compensation  of  officers  of,  11,  9,  p.  369. 

not  to  be  released  from  state  taxes,  11,  10,  p.  371. 

may   make   local,   police,   and   sanitary   regulations,   11,   11, 
p.  372. 

power  to  levy  taxes,  11,  12,  p.  386. 

powers  not  to  be  delegated,  11,  13,  p.  390. 

to  appoint  local  inspection  officers,  11,  14,  p.  393. 

private  property  not  liable  for  debts  of,  11,  15,  p.  393. 

moneys  collected  to  be  paid  into  treasury,  11,  16,  p.  394. 

making  profit  out  of  public  funds  a  felony,  11,  17,  p.  396. 

restriction  on  power  to  incur  debts,  11,  18,  p.  396. 

provision  to  be  made  for  payment  of  debts,  11,  18,  p.  396. 

liabilities,  when  void,  11,  18,  p.  396. 

property  of  exempt  from  taxation,  13,  1,  p.  447. 

protection  from  alien  paupers,  etc.,  19,  1,  p.  528. 
COUNTY   AND   TOWNSHIP— business  to   be  governed  by  gen- 
eral laws,  4,  25,  p.  151. 

COUNTY  BOARDS  OF  EQUALIZATION— how  constituted  and 

duties  of,  13,  9,  p.  471. 
COUNTY  CLERKS— ex  officio  clerks  of  courts  of  record,  6,  14, 
p.  262. 
election  and  appointment  of,  11,  5,  p.  303. 
duties  as  to  new  constitution,  22,  6,  p.  558. 
COUNTY   GOVERNMENTS— as  existing,  recognized,   11,   1,  p. 
297. 
legislature  to  establish  system  of,  11,  4,  p.  301. 
freeholders'  charters  for,  11,  71/2,  p.  323. 
COUNTY  OFFICERS— to  be  regulated  by  general  laws,  4,  25, 
p.  151. 
legislature  to  provide  for  election  of,  11,  5,  p.  303. 
to  pay  county  moneys  into  treasury,  11,  16,  p.  39-1. 
making  profit  thereon,  or  using  the  same,  a  felony,  11,  16, 

p.  394. 
duties  as  to  return  of  votes  on  new  constitution,  22,  8,  p. 
336. 


740  INDEX. 

COUNTY   SEATS— cannot   be    changed   by   special   legislation, 
Art.  4,  Sec.  25,  p.  152. 
proceedings  for  removal  of,  11,  2,  p.  297. 
two-thirds  vote  required,  11,  2,  p.  297. 

proposition  can  be  made  but  once  in  four  years,  11.  2.  p. 
297.  >       >     }  f 

COUNTY  SUPERINTENDENTS— election  and  qualification  of. 
9,  3,  p.  279. 
when  to  adopt  text-books,  9,  7,  p.  284. 

COURT  COMMISSIONERS— legislature  may  provide  for    6,  14, 
p.  261. 

and  authorize  to  act  at  chambers,  6,  14,  p.  261. 

to  take  depositions,  etc.,  6,  14,  p.  261. 

allowed  fees  and  perquisites,  6,  15,  p.  262. 
COURT  OF  IMPEACHMENT— 6,  1,  p.  196. 
COURTS — practice  to   be  governed  by  general  laws,  4,  25,  p.  151. 

inferior,  legislature  may  establish,  6,  1,  p.  196. 

except  justices  of  the  peace  and  police  courts  abolished,  22, 

3,  p.  555. 

records,  books,  etc.,  to  be  transferred  to  new  courts,  22,  3, 
p.  555. 

power  and  jurisdiction  of  new  courts,  22,  3,  p.  555. 
COURTS  OF  RECORD— what  are,  6,  12,  p.  260. 

county  clerks  as  clerks  of,  6,  14,  p.  261. 

judge  of  not  to  practice  law,  6,  22,  p.  272. 
CREDIT  OF  STATE— local  and  special  legislation  prohibited, 

4,  25,  p.  151. 

not  to  be  loaned,  4,  31,  p.  172;  12,  13,  p.  428. 

not  to  be  given  nor  loaned,  12,  13,  p.  428. 
CREDITS— taxable,  13,  1,  p.  41. 
CREED — appropriations  prohibited,  4,  30,  p.  17L 
CRIME — offenses,  how  prosecuted,  1,  8,  p.  14. 

impeachment  of  civil  officers,  4,  18,  p.  129. 

right  of  trial  by  jury,  1,  7,  p.  11. 

rights  of  party  accused,  1,  13,  p.  23. 

deprivation  of  right  of  suffrage  on  conviction  for,  2,  1,  p.  69. 

laws  to  be  made  to  exclude  from  office,  juries,  etc.,  persona 
convicted,  20,  11,  p.  538. 

existing  prosecutions  for  not  affected,  22,  2,  p.  554. 


INDEX.  741 

CEHUNAL   CASES — appellate   jurisdiction    of   supreme    court, 
Art.  6,  Sec.  4,  p.  205. 
original  jurisdiction  of  superior  court,  6,  5,  p.  227. 
CRIMINAL  PEOSECUTION— rights  of  accused,  1,  13,  p.  23. 

CRUEL   AND   UNUSUAL   PUNISHMENTS— prohibited,    1,    6, 
p.  9. 

CULTIVATED  LANDS— and  uncultivated,  how  assessed,  13,  2, 
p.  464. 

CUMULATIVE  VOTE— may  be  cast  by  stockholder,  12,  12,  p. 
427. 

DAMAGE — not  to   be   done   for  public   use   without   compensa- 
tion, 1,  14,  p.  42. 

DAMAGES — recoverable    for   excessive   charges   for   fares   and 
freights,  12,  22,  p.  437. 

DAY'S  WORK— on  public  works  eight  hours,  20,  17,  p.  546. 

DEATH — of  governor,  lieutenant-governor  to  act,  5,  16,  p.  190. 

DEBTS — to  be  deducted  from  credits  in  assessments,  unless  due 
to  foreign  creditor,  13,  1,  p.  47. 

See  State  Indebtedness. 
DEBTS  OF  STATE— limitation  to  creation  of,  16,  1,  p.  517. 
DECLARATION  OF  RIGHTS,  1,  1,  p.  3. 

DEEDS — cannot  be  validated  by  special  legislation,  4,  25,  p.  152. 
of  trust,  taxation  of,  13,  4,  p.  465. 

DEFALCATION— in  office  a  disqualification,  4,  21,  p.  132. 

DELEGATES — to  convention  for  revision  of  constitution,  18,  2, 
p.  526. 
legislature  may  provide  for  payment  of,  20,  19,  p.  548. 

DELEGATION  OF  POWERS— of  taxation  to  municipal  corpo- 
rations, 11,  12,  p.  386. 
to  remove  Chinese,  19,  4,  p.  530. 

DENOMINATIONAL  SCHOOLS— to  receive  no  public  moneys, 
9,  8,  p.  287. 

DEPARTMENTS— of  government,  3,  1,  p.  79. 
of  supreme  court,  6,  2,  p.  200. 
each  empowered  to  hear  and  determine,  6,  2,  p.  200. 


742  INDEX. 

DEPARTMENTS — tliree    justices    necessary    to    transact    busi- 
ness, Art.  6,  Sec.  2,  p.  200. 
their  concurrence  necessary  to  judgment,  6,  2,  p.  200. 
judgment  not  final  till  expiration  of  thirty  days,  6,  2,  p.  200. 

DEPOSITIONS— legislature  to  provide  for  taking,  1,  13,  p.  23. 

DEPRIVING  OF  LIFE,  LIBERTY  OR  PROPERTY— 1,  13,  p. 
23. 

DESCENT— special  legislation  prohibited,  4,  25,  p.  153. 

DIFFUSION  OF  KNOWLEDGE— to  be  encouraged,  9,  1,  p.  278. 

DIRECTORS  OF  CORPORATIONS— mode  of  election  of,  12,  12, 
p.  427. 
right  of  stockholders  to  cumulate  votes,  12,  12,  p.  427. 
jointly  and  severally  liable  for  embezzlement  of  employees, 
12,  3,  p.  414. 
DISABILITY — for   office   on    conviction    for    embezzlement   or 
defalcation,  4,  21,  p.  132. 
of  governor,  lieutenant-governor  to  act,  5,  16,  p.  190. 
by  dueling,  20,  2,  p.  401. 

laws  to  be  passed  to  exclude  convicted  persons  from  office, 
juries,  etc.,  20,  11,  p.  538. 
DISAPPROVAL  OF  BILLS— by  governor,  4,  16,  p.  125. 
DISCRIMINATION— in   fares   and  freights  prohibited,   12,   21, 

p.  435. 
DISFRANCHISEMENT— of  legislator  for  accepting  reward  or 
bribe,  4,  35,  p.  179. 
for  dueling,  20,  2,  p.  533. 
DISQUALIFICATION— of  members  of  legislature  for  offenses, 
4,  19,  p.  130. 
of  certain  officers  to  hold  office,  4,  20,  p.  131. 
by  embezzlement  and  defalcation,  4,  21,  p.  132. 
on  conviction  for  offering  bribes,  20,  10,  p.  538. 
by  offering  bribe  to  voters,  20,  10,  p.  538. 
Bex,  as  to  business  pursuits  not  to  create,  20,  18,  p.  547. 
of  members  of  corporations  for  certain  offices,  4,  33,  p.  178. 
by  receiving  bribe,  4,  35,  p.  179. 

of  lieutenant-governor  for  other  offices,  5,  15,  p.  190. 
DISTRIBUTION  OF  POWERS— of  government,  3,  1,  p.  79. 
DISTRIBUTIVE  VOTE— on  election  of  officers  of  corporations, 
12,  12,  p.  427. 


INDEX.  743 

DISTRICT  ATTORNEYS— legislature  to  provide  for  election  of, 

Art.  11,  Sec.  5,  p.  303. 
DISTRICT  COURTS— See  Superior  Courts. 

DISTRICT     COURTS    OF    APPEAL— invested    with    judicial 
power,  6,  1,  p.  196. 

formation  of  districts,  6,  4,  p.  205. 

Bessious  of,  6,  4,  p.  205. 

jurisdiction  of,  6,  4,  p.  205. 

removal  of  causes  from,  6,  4,  p.  205. 

transfer  from  one  district  to  another,  6,  4,  p.  205. 

election  of  judges,  6,  4,  p.  205. 

presiding  justice,  6,  4,  p.  205. 

appointment  of  judge  pro  tempore,  6,  4,  p.  205. 

dismissal  of  appeals  to,  ti,  4,  p.  205. 

statutes  applicable  to,  6,  4,  p.  205. 

rules  of,  6,  4,  p.  205. 
DISTRICTING  STATE— for  representation,  4,  6,  p.  117. 

for  railroad  purposes,  12,  22,  p.  437. 
DIVISION  OF  COUNTY— congressional  districts,  4,  27,  p.  170. 
DIVORCES— special  legislation  prohibited,  4,  25,  p.  151. 

original  jurisdiction  of  superior  courts,  6,  5,  p.  227. 
DONATION — in  aid  of  religious  institutions  prohibited,  4,  30, 

p.  171. 
DUE  PROCESS  OF  LAW— what  is,  1,  13,  p.  32. 
DUELING— disfranchisement  for,  20,  2,  p.  533. 
DUES — from  corporation  to  be  secured  by  law,  12,  2,  p.  414. 

individual  liability  of  stockholders,  12,  3,  p.  414. 

liability  of  trustees,  12,  3,  p.  414. 

liability  of  taxation,  13,  1,  p.  447. 
DUTIES — of  departments  to  be  distinct,  3,  1,  p.  79. 

of  state  officers,  5,  18,  p.  193. 

of  clerk  of  supreme  court,  6,  14,  p.  261. 

of  railroad  commissioners,  12,  22,  p.  437. 

of  boards  of  equalization,  13,  9,  p.  471. 

EDUCATION — diffusion   of  knowledge  to  be  encouraged,  9,  1, 
p.  278. 
superintendent  of  public  instruction,  9,  2,  p.  279. 
county  superintendents,  9,  3,  p.  279. 


744  INDEX. 

EDUCATION— seliool  funds,  how  applied,  Art.  9,  Sec.  4,  p.  280. 
common  school  system,  9,  5,  p.  2S1. 
system,  what  to  include,  9,  6,  p.  282. 
who  to  adopt  textbooks,  9,  7,  p.  28 1. 
sectarianism  prohibited,  9,  8,  p.  287. 
university  fund,  9,  9,  p.  288. 

See  Common  Schools;  University. 

ELEEMOSYNAEY    INSTITUTIONS     ALONE     CAN    ENJOY 
PERPETUITIES— 20,  9,  p.  471. 

ELECTION  OFFICERS— to  be  governed  by  general  laws  only,  4, 
25,  p.  15L 

ELECTIONS— who  may  vote  at,  2,  1,  p.  69. 
who  not  entitled  to  vote,  2,  1,  p.  69. 
privilege  from  arrest  on  days  of,  2,  2,  p.  73. 
exemption  from  militia  duty,  2,  3,  p.  77. 
residence,  how  lost,  2,  4,  p.  77. 
to  be  by  ballot,  2,  5,  p.  78. 
of  members  of  legislature,  4,  3,  p.  116. 
of  county  officers,  local  acts  prohibited,  4,  25,  p.  151. 
and  place  of  voting  to  be  regulated  by  general  laws,  4,  25, 

p.  151. 
by  legislature  to  be  viva  voce,  4,  28,  p.  171. 
each  house  to  judge  of  election  and  return  of  its  members, 

4,  7,  p.  119. 
to  be  conducted  under  general  laws,  4,  25,  p.  151. 
of  governor,  when  and  how,  5,  2,  p.  183. 
of  lieutenant-governor,  5,  15,  p.  190. 
of  state  officers,  5,  17,  p.  191. 
of  justices  of  supreme  court,  6,  3,  p.  204. 
of  judges  of  superior  court,  6,  6,  p.  248. 
of  superintendent  of  public  instruction,  9,  2,  p.  279. 
of  supervisors   of   consolidated  city   governments,   11,   7,  p. 

320. 
term  and  classification  of,  11,  7,  p.  284. 
for  ratification  of  city  charter,  11,  8,  p.  336. 
of  amendment  to  charter,  11,  S,  p.  341. 
of  officers  of  agricultural  society,  12,  11,  p.  427. 
of  directors  and  trustees  of  corporations,  12,  12,  p.  427. 
cumulative  vote  by  stockholders,  12,  12,  p.  427. 
or  distributive  vote,  12,  12,  p.  427. 
manner  of  voting  of  co-operative  societies,  12,  12.  p.  427. 


INDEX.  745 

ELECTIONS — of  railroad   commissioners,   Art.    12,   Sec.   22,  p. 

437. 
of  state  board  of  equalization,  13,  9,  p.  471. 
to  be  held  on  creation  of  state  debt,  16,  1,  p.  517. 
on  amendment  to  constitution,  18,  1,  p.  525. 
on  revision  of  constitution,  IS,  2,  p.  52C. 
of  officers  created  by  legislation,  20,  4,  p.  535. 
offering  bribe  for  a  disqualification  for  office,  20,  10,  p.  538. 
to  be  regulated  by  laws,  20,  11,  p.  538. 
plurality  vote  constitutes  a  choice,  20,  13,  p.  539. 
for  state  officers,  what  years  to  be  held,  20,  20,  p.  548. 
time  and  manner  of  elections  of  judicial  and  school  officers, 

22,   10,  p.  560. 

ELECTOR — property    qualification    not    to   be    required,    1,   24, 
p.  67. 
who  disqualified  to  vote,  2,  1,  p.  69. 
privilege  from  arrest,  2,  2,  p.  73. 
from  militia  duty,  2,  3,  p.  77. 
residence,  how  not  lost,  2,  4,  p.  77. 

ELIGIBILITY— of  member  of  legislative  body,  4,  4,  p.  116. 
for  office  of  governor,  5,  3,  p.  183. 
of  lieutenant-governor,  5,  15,  p.  190. 
for  judicial  offices,  6,  23,  p.  272. 
for  railroad  commissioner,  12,  22,  p.  437. 

EMBEZZLEMENT— to  deprive  of  privilege  of  elector,  2,  1,  p.  69. 
a  disqualification  to  office,  4,  21,  p.  132. 
a  felony,  4,  21,  p.  132. 
directors  and  trustees  liable  for,  12,  3,  p.  414. 

EMINENT  DOMAIN — exercise  of  powers,  1,  14,  p.  42. 

compensation  to  be  first  secured,  1,  14,  p.  42. 

damage  to  property,  a  taking,  1,  14,  p.  42. 

corporations  subject  to  right  of,  12,  8,  p.  424. 

right  of,  not  to  be  abridged  on  grants  of  corporate  fran- 
chise, 12,  8,  p.  424. 

franchises  subject  to  right  of,  12,  8,  p.  424. 

right  extends  to  all  frontages  on  navigable  waters,   15,  1, 
p.  515. 
EMPLOYMENT — corporations  prohibited  from  employing  Chi- 
nese, 10,  2,  p.  529. 

Chinese  not  to  bo  employed  on  public  works,  19,  3,  p.  530. 


746  INDEX. 

ENACTING  CLAUSE— of  statutes,  Art.  4,  Sec.  1,  p.  86. 

ENDOWMENT— of  university,  9,  9,  p.  288. 

ENGLISH — the  sole  language  for  publication  of  public  writings, 
etc.,  4,  24,  p.  141. 

ENJOYMENT    OF    PROPERTY— rights    of    foreigners,    1,    17, 
p.  61. 

ENUMERATION  OF  RIGHTS— not  to  affect  others  reserved,  1, 

23,  p.  67. 
EQUITY — appellate  jurisdiction  of  supreme  court,  6,  4,  p.  205. 
original  jurisdiction  in  superior  court,  6,  5,  p.  227. 

ESTATES  OF  DECEASED— local  and  special  acts  prohibited, 
4,  25,  p.  132. 
when  to  go  into  school  funds,  9,  4,  p.  280. 

EVENING  SCHOOLS— may  be  established,  9,  6,  p.  282. 

EVIDENCE^in  cases  of  libel,  1,  9,  p.  16. 

what  necessary  to  convict  of  treason,  1,  20,  p.  G3. 

in  cases  of  bribery  and  corrupt  solicitation,  4,  35,  p.  179. 

EXAMINATION     OF     TEACHERS— under     control     of    local 

boards,  9,  7,  p.  284. 
EXCESSIVE   BAIL    OR   FINES— cannot   be    required   nor   im- 
posed, 1,  6,  p.  9. 
EXCLUSIVE  RIGHTS— cannot  be  granted  by  special  statute, 

4,  25,  p.  152. 
EXCURSION    AND     COMMUTATION    TICKETS— at    special 

rates,  12,  21,  p.  435. 
EXECUTIVE— a  department  of  government,  5,  1,  p.  182. 
power  vested  in  governor,  5,  1,  p.  182. 
business  of,  5,  6,  p.  184. 
to  see  laws  executed,  5,  7,  p.  184. 
to  fill  vacancies  in  office,  5,  8,  p.  184. 
state  officers,  election  and  term  of,  5,  17,  p.  192. 
compensation  of,  5,  19,  p.  193. 

proceedings  to  be  published  in  English  only,  4,  24,  p.  141. 
secretary  of  state  to  keep  records  of,  5,  IS,  p.  193. 
duty  of  on  return  of  election  on  revision  of  constitution,  18, 
2,  p.  526. 

See  Governor. 
EXECUTIVE  OFFICER- oath  to  be  taken  by,  20,  3,  p.  534. 


INDEX.  747 

EXEMPLARY  DAMAGES— on  extortion  in  charge  of  fares  and 

fre'ights,  Art.  12,  Sec.  22,  p.  437. 
EXEMPTIONS — from  taxation,   special   acts  prohibited,  4,  25, 
p.  151. 
what  property  is,  13,  1,  p.  447. 
property  used  for  religious  worship,  13,  l^/^,  p.  464. 
property   of  Leland   Stanford  Junior  University,   9,   10,   p. 

289. 
property   of   California   School   of   Mechanical   Arts,   9,   11, 

p.  291. 
fruit  and  nut-bearing  trees,  13,  12%,  p.  480. 
from  poll  tax,  who  is,  13,  12,  p.  479. 
of  executive  officer  from  process,  5,  6,  p.  ISl. 
of  homestead  from  forced  sale,  17,  1,  p.  521. 
EXPENDITURES— to  be  published  with  the  laws,  4,  22,  p.  133. 
EXPENSES     OF     CONSTITUTIONAL   CONVENTION— provi- 
sion for,  20,  19,  p.  548. 
EX  POST  FACTO  LAWS— prohibited,  1,  16,  p.  54. 
EXPULSION  OF  MEMBER— power  of  legislature,  4,  9,  p.  121. 
EXTENSION  OF  TIME  FOR  COLLECTION  OF  TAX— special 

acts  prohibited,  4,  25,  p.   153. 
EXTINGUISHMENT  OF  DEBT  OR  LIABILITY— special  act3 

prohibited,  4,  25,  p.  152. 
EXTORTION— in  fares  and  freights,  penalty   for,  12,  22,  p.  437. 
EXTRA  COMPENSATION  TO  PUBLIC  OFFICERS  PROHIB- 
ITED—4,  32,  p.  176. 
EXTRA  SESSIONS  OF  LEGISLATURE— how  convened,   4,  2, 
p.  113. 
on  extraordinary  occasions,  5,  9,  p.  188. 

FARES  AND  FREIGHTS— power  to  regulate  in  government,  12, 

20,  p.  434. 
when  lowered  cannot  be  raised  without  its  consent,  12,  20, 

p.  434. 
discrimination  in  charges  prohibited,  12,  21,  p.  435. 
exception  as  to  certain  tickets,  12,  21,  p.  435. 
to  be  regulated  by  a  commission,  12,  22,  p.  437. 
to  be  published  from  time  to  time,  12,  22,  p.  437. 
damages  for  excessive  charges,  12,  22,  p.  437. 
See  Railroad   Commission. 


748 


INDEX. 


FEDEEAL  CONSTITUTION-tlie  supreme  law,  Art.  1,  Sec.  3, 

distinguished  from  state  constitution,  p.  vii. 

FEDEEAL  OFFICEE— not  eligible  to  state  civil  office,  4.  20 
p.  131.  '     '       ' 

not  eligible  to  office  of  governor,  5,  12,  p.  189. 

FEES  AND  PEEQUISITES  OF  OFFICE  ABOLISHED— 5  19 
p.  193.  '       ' 

prohibited  to  judicial  officers,  6,  15,  p.  262. 

excei>tion,  justices  of  peace  and  court  commissioners,  6  15 
p.  262.  '     '       ' 

FEES  AND  SALAEIES— local  and  special  legislation  prohib- 
ited, 4,  25,  p.  151. 

FELONY— lobbying  declared  to  be,  4,  35,  p.  179. 
embezzlement  of  public  funds,  4,  21,  p.  132. 
public  officers  using  or  making  profit  out  of'public  moneys, 

11,  17,  p.  396. 
legislator  influenced  by  promise  of  reward,  4,  35,  p.  179. 
original  jurisdiction  of  superior  court,  6,  5,  p.  227. 

FEERIES — cannot  be  chartered  or  licensed  by  special  acts  4 
25,  p.  163.  '     ' 

FICTITIOUS  INCEEASE  OP  STOCK  ISSUE— void,  12.  11. 
p.  426.  '        '        ' 

FINES — excessive  not  to  be  imposed,  1,  6,  p.  9. 

cannot  be  remitted  by  special  legislation,  4,  25,  p.  153. 
imposed  for  excessive  charge  for  fares  and  freights,  12,  22. 
p.  437.  &      >       ;      » 

already  due  not  affected  by  adoption  of  new  constitution. 
22,  2,  p.  554.  ' 

FISCAL  YEAE— to  commence  on  1st  of  July,  20,  5,  p.  536. 

FISH — right  to  on  public  lands,  1,  25,  p.  68. 

FISH  AND  GAME  DISTRICTS— 4,  25i/o,  p.  167. 

FLAGS — authorized,  to  be  carried  by  militia,  8,  2,  p.  276. 

FOECIBLE  ENTEY  AND  DETAINER— appellate  jurisdiction 

in,  6,  4,  p.  205. 
original  jurisdiction,  6,  5,  p.  227. 
concurrent  jurisdiction   of  justices   of  the  peace,  6,   11,  p. 

255. 


INDEX.  749 

FOREIGN  CORPORATION— not  to  be  favored,  Art.  12,  Sec.  15, 

p.  429. 
FOREIGNERS— rights  of  enjoyment  of  property,  1,  17,  p.  61. 

presence  of  certain,  to  be  discouraged,  19,  4,  p.  530. 
FORFEITURE — cannot  be  remitted  by  special  acts,  4,  25,  p.  153. 

of  franchise  by  water  companies,  14,  1,  p.  508. 

of  office  for  taking  free  passes  on  railroads,  12,  19,  p.  434. 

of  railroad  franchise,  legislature  may  provide  for,   12,   22, 
p.  437. 

of  existing  franchises  not  to  be  remitted,  12,  7,  p.  423. 
FORGERY — conviction  for,  a  disfranchisement,  20,  11,  p.  538. 
FORM— of  oath  of  office,  20,  3,  p.  534. 

FRANCHISE — exclusive    privileges,   special   legislation   prohib- 
ited, 4,  25,  p.  152. 

those  not  fully  organized  and  in  business  valid,  12,  6,  p. 
422. 

not  to  be  extended,  12,  7,  p.  423. 

nor  forfeitures  remitted,  12,  7,  p.  423. 

subject  to  right  of  eminent  domain,  12,  8,  p.  424. 

lease    or   alienation   not   to   relieve   from   liability,   12,    10, 
p.  425. 

as  property  liable  to  taxation,  13,  1,  p.  447. 

power  of  taxation  not  to  be  surrendered  in  grant  of,  13,  6, 
p.  470. 

legislature  may  provide   for   forfeiture   of,   12,   22,  p.   437. 

taxable,  13,  1,  p.  447. 

assessment  of  for  taxes,  13,  10,  p.  476. 

water  rights,  when  forfeited,  14,  1,  p.  508. 

right  to  compensation  for  water  supply  a  franchise,  14,  2, 
p.  513. 
FRAUD — as  ground  for  imprisonment  for  debt,  1,  15,  p.  53. 
FREE  AND  INDEPENDENT— all  men  are,  1,  1,  p.  3. 
FREE  ASSEMBLAGES— guaranteed,  1,  10,  p.  17. 
FREE  NAVIGATION— in  harbors,  15,  2,  p.  515. 

over  tide  lands,  15,  3,  p.  515. 
FREE  PASSES — on  railroads,  prohibitions  as  to,  12,  19,  p.  434. 

acceptance  to  work  forfeiture  of  office,  12,  19,  p.  434. 
FREE  SCHOOLS— to  be  kept  up  in  each  district,  9,  5,  p.  281. 

for  six  months  in  the  year  at  least,  9,  5,  p.  281. 


750  INDEX. 

FEEE  SUFFRAGE— privilege  to  be  protected  by  law,  Art.  20, 

Sec.  11,  p.  538. 
FREEDOM  AND  INDEPENDENCE— declaration  of,  1,  1,  p.  3, 
FREEDOM   OF   SPEECH   AND   OF   THE   PRESS— to   be  pre- 
served, 1,  9,  p.  16. 

FREEHOLDERS— See   Board   of  Freeholders. 
FRONTAGES    ON    NAVIGABLE    WATERS— power    of    state 
over,  15,  1-3,  p.  515. 

FRUIT  AND  NUT-BEARING  TREES— exempt  from  taxation, 
13,  12%,  p.  480. 

GAS  AND  WATER— right  of  cities  to  regulate  charges,  11,  19, 
p.  403. 

GAS  CORPORATIONS— legislation  to  regulate  charges,  4,  33,  p. 
178. 
right  to  introduce  light  in  cities,  11,  19,  p.  403. 
right  of  cities  to  regulate  charges,  11,  19,  p.  403. 
may  use  streets  for  laying  down  pipes,  11,  19,  p.  403. 

GENERAL  APPROPRIATION  BILL— restrictions  as  to,   4,  20, 
p.  171. 

GENERAL  LAWS— to  have  a  uniform  operation,  1,  11,  p.  18. 
what  are,  p.  310. 

GIFT  ENTERPRISES— prohibited,  4,  26,  p.  167. 

GOVERNMENT— purpose  of  institution  of,  1,  2,  p.  6. 
right  to  alter  or  reform,  1,  2,  p.  6. 
powers,  how  distributed,  3,  1,  p.  79. 

GOVERNOR — may  convene  legislature  by  proclamation,  4,  2,  p. 

113. 
to  issue  writs  of  election  to  fill  vacancy  in  legislature,  4,  12, 

p.  123. 
to  approve  all  laws,  4,  16,  p.  125. 

may  veto  separate  items  in  appropriation  bill,  4,  16,  p.  125. 
duty  on  return  of  bill  with  objections.  4,  16,  p.  125. 
subject  to  impeachment,  4,  18,  p.  129. 
supreme  executive  power,  vested  in,  5,  1,  p.  182, 
when  and  how  elected,  5,  2,  p.  183. 
term  of  office,  5,  2,  p.  183. 
eligibility  and  qualification  to  office,  5,  3,  p.  183. 


iNDEi.  751 

GOVEENOR— return  of  election  of,  Art.  5,  Sec.  4,  p.  183. 

when  legislature  to  elect,  5,  4,  p.  183. 

commander-in-chief  of  militia,  5,  5,  p.  184. 

to  transact  all  executive  business,  5,  6,  p.  184. 

may  require  information  from  officers,  5,  6,  p.  184. 

to  see  that  laws  are  executed,  5,  7,  p.  184. 

when  to  fill  vacancy  in  office,  5,  8,  p.  184. 

when  may  convene  legislature  by  proclamation,  5,  9,  p.  188. 

to  communicate  to  legislature  at  every  session,  5,  10,  p.  188. 

to  adjourn  legislature  in  certain  contingencies,  5,  11,  p.  188, 

disability  to  bold  other  office,  5,  12,  p.  189. 

to  keep  seal  of  state,  5,  13,  p.  189. 

to  seal  and  sign  public  grants  and  commissions,  5,  14,  p.  189. 

who  to  act  in  case  of  impeachment,  5,  16,  p.  190. 

absence  not  to  affect  right  as  commander-in-chief,  5,   16,  p. 
190. 

compensation  of,  5,  19,  p.  193. 

ineligible  for  United  States  senator  during  term,  5,  20,  p.  195. 

to  fill  vacancy  in  justices  of  supreme  court,  6,  3,  p.  202. 

term  of  appointee,  6,  3,  p.  202. 

to  fill  vacancy  in  superior  judgeship,  6,  6,  p.  246. 

may  recommend  removal  of  judicial  officer,  6,  10,  p.  254. 

to  grant  reprieves,  pardons,  etc.,  7,  1,  p.  174. 

duty  in  cases  of  treason,  7,  1,  p.  174. 

to  communicate  such  grants  to  legislature,  7,  1,  p.  174. 

restriction  on  pardoning  power,  7,  1,  p.   174. 

to  commission  officers  of  militia,  8,  1,  p.  276. 

may  call  out  militia  to  execute  laws,  8,  1,  p.  276. 

to  appoint  board  of  prison  directors,  10,  1,  p.  293. 

when  may  remove  them,  10,  1,  p.  293. 

to  fill  vacancy  in  railroad  commission,  12,  22,  p.  427. 

to  canvass   returns  on  revision  of  constitution,   18,  2,  p.  526. 

to  give  notice  of  election  for  adoption  of  new  constitution, 
22,  4,  p.  556. 

duty  on  return  of  vote  thereon,  22,  9,  p.  559. 
GRAND  JURY — to  be  drawn  at  least  once  a  year,  1,  8,  p.  14. 

local  and  special  legislation  prohibited,  4,  25,  p.  151. 
GRANTS — prohibited  to  institutions  not  under  state  control,  4,  23, 
p.  133. 

of  rights  and  privileges,  special  acts  prohibited,  4,  25,  p.  151. 

in  and  of  religious  institutions  prohibited,  4,  30,  p.  131. 


752  INDEX. 

GRANTS — to  be  sealed  and  signed  by  governor,  Art.  5,  Sec.  14, 
p.  189. 
existing  grants,  when  invalid,  12,  6,  p.  422. 
not  to  be  extended,  12,  7,  p.  423. 
power  of  taxation  not  to  be  surrendered,  13,  6,  p.  470. 
of  land,  restriction  as  to,  17,  3,  p.  522. 

GRAVE YAEDS— special  legislation  prohibited,  4,  25,  p.  151. 

GREAT  SEAL  OF  STATE— 5,  13,  p.  189. 

GROWING  CROPS— exempted  from  taxation,  13,  1,  p.  447. 

HABEAS  CORPUS — privilege  of  writ  not  to  be  suspended,  ex- 
cept, 1,  5,  p.  9. 
justice  may  issue,  returnable  in  his  discretion,  6,  4,  p.  205. 
judges  of  superior  court  may  issue,  6,  5,  p.  227. 

HARBOR — frontages  on  navigable  waters,  power  of  state  over, 
15,  1,  p.  515. 
subject  to  right  of  eminent  domain,  15,  1,  p.  515. 
obstructions  to  navigation  prohibited,  15,  2,  p.  515. 
frontages  withheld  from  grant  or  sale,  15,  3,  p.  515. 

HEALTH — legislature  to  provide  for  a  state  board  of  health,  20, 
14,  p.  540. 

HIGH  CRIMES— impeachment  for,  4,  18,  p.  129. 

conviction  for,  a  disfranchisement,  20,  11,  p.  538. 
HIGH  SCHOOLS— may  be  established  by  legislature,  9,  6,  p.  282. 
HIGHWAYS — local  and  special  legislation  prohibited,  4,  25,  p. 
151. 

state  highways,  4,  36,  p.  181. 

HOMESTEAD— exemption  from  forced  sale,  17,  1,  p.  521. 

HOSPITALS — not  under  state  control,  appropriations  prohibited, 
4,  22,  p.  133. 

HOUSES  OF  LEGISLATION— in  certain  cities,  11,  7,  p.  320. 

HUSBAND  AND  WIFE — separate  property  to  each  secured,  20, 
8,  p.  537. 

HYPOTHECATION  BY  MINOR— special  legislation  prohibited, 
4,  25,  p.  152. 


INDEX.  753 

IDIOT — cannot  be  an  elector,  Art.  2,  Sec.  1,  p.  69. 
exempt  from  poll  tax,  13,  12,  p.  479. 

IMMIGRATION  OF  CHINESE— to  be  discouraged,  19,  4,  p.  530. 

IMMUNITIES— of  citizens,  1,  21,  p.  64. 

to  corporations  special  legislation  prohibited,  4,  25,  p.  152. 

soldiers  not  to  be  quartered  on  citizens,  1,  12,  p.  23. 

from  being  twice  put  in  jeopardy,  1,  13,  p.  23. 

from  loss  or  damage  to  property,  1,  14,  p.  42. 

from  imprisonment  for  debt,  1,  15,  p.  53. 

of  members  of  legislature  from  arrest,  4,  11,  p.  122. 

IMPAIRING — obligation  of   contract,   laws   prohibited,   1,   16,  p. 
54. 

IMPANELING  JURIES— special  and  local  acts  prohibited,  4,  25, 
p.  151. 
grand  jury  to  be  drawn  at  least  once  a  year,  1,  8,  p.  14. 

IMPEACHMENT— assembly,  sole  power  of,  4,  17,  p.  128. 
trial  by  senate,  4,  17,  p.  128. 
state  otScers  subject  to,  4,  18,  p.  129. 
senate  as  court  of,  6,  1^  p.  196. 
lieutenant-governor,  when  to  act  as  governor,  5,  16,  p.  190. 

IMPOSTS — appellate  jurisdiction  of  supreme  court,  6,  4,  p.  205. 
original  jurisdiction  of  superior  court,  6,  5,  p.  227. 

IMPRISONMENT— for  debt  not  allowed,  except,  1,  15,  p.  53. 
of  railroad  official  for  excessive  charges,  12,  22,  p.  437. 

IMPROVEMENTS— of  city  streets,  11,  19,  p.  403. 
INALIENABLE  RIGHTS— 1,  1,  p.  3. 

INCOME  TAXES— legislature  may  provide  for,  13,  11,  p.  499. 
INCREASE   IN   PER   DIEM   AND    MILEAGE    OF   LEGISLA- 
TORS PROHIBITED— 4,  23,  p.  140. 

INDEBTEDNESS  OP  CORPORATIONS— special  acts  for  relief 
prohibited,  4,  25,  p.  152. 
of  municipal  corporations,  provisions  for  payment  of,  11,  18, 

p.  396. 
•when  void,  11,  18,  p.  396. 

of  state,  restriction  on  power  of  legislature,  16,  1,  p.  517. 
Constitution — 18 


754  INDEX. 

INDICTMENT— offenses  may  be  prosecuted  lay,  Art.  1,  Sec.  8, 
p.  14. 
for  libel,  where  to  be  tried,  1,  9,  p.  16. 

pending  unaffected  by  adoption  of  new  constitution,  22,  2,  p. 
554. 
INDIGENT  PERSONS— state  care  over,  4,  22,  p.  133. 
INELIGIBILITY— to  office  of  governor,  5,  12,  p.  189. 

of  governor  for  United  States  senate,  5,  20,  p.  195. 
INFECTIOUS  DISEASES— protection  from,  19,  1,  p.  528. 
INFERIOR  COURTS— may  be  established  by  legislation,  6,  1,  p. 
196. 
jurisdiction  to  be  fixed  by  law,  6,  13,  p.  261. 
powers,  duties,  and  responsibilities,  6,  13,  p.  261. 
INFORMATION — offenses  may  be  prosecuted  by,  1,  8,  p.  14. 
for  libel,  where  to  be  tried,  1,  9,  p.  16. 
pending,  unaffected  by  adoption  of  new  constitution,  22,  2,  p. 

554. 
from  state  officers  to  executive  department,  5,  6,  p.  184. 
INHERITANCE— rights  of  foreigners,  1,  17,  p.  61. 
INITIATIVE — power  to  initiate  legislation  reserved,  4,  1,  p.  86. 
INJUNCTION — may  be  served  on  holidays  and  nonjudicial  days, 

6,  5,  p.  227. 
INJURY  TO  PROPERTY— compensation  to  be  made,   1,  14,  p. 

42. 
INSANE  PERSONS— cannot  be  electors,  2,  1,  p.  69. 

exempt  from  poll  tax,  13,  12,  p.  479. 
INSOLVENCY — appellate  jurisdiction  in  supreme  court,  6,  4,  p. 
205. 
original  jurisdiction  in  superior  courts,  6,  5,  p.  227. 
INSPECTION    OFFICERS— to   be   appointed    by    municipalities, 

11,  14,  p.  393. 
INSTALLMENTS— payment  of  taxes  in,  13,  7,  p.  470. 
INSTITUTIONS  NOT  UNDER  STATE  CONTROLr— appropria- 

tions  prohibited,  4,   22,  p.  133. 
INSTRUCTIONS— certain  improper,  6,  19,  p.  266. 

certain  proper,  6,  19,  p.  266. 
INSTRUMENTS— cannot  be  validated  by  special  acts,  4,  25,  p. 
152. 


INDEX.  755 

INSUEEECTIONS — power  of  governor  to  suppress,  Art.  8,  Sec, 
1,  p.  276. 
authority  to  contract  debts,  16,  1,  p.  517. 

INTELLECTUAL  IMPROVEMENT— to  be  encouraged,  9,  1,  p. 

278. 
INTEREST— to  be  regulated  by  general  laws  only,  4,  25,  p.  152. 

on  state  debt,  provision  to  be  made  for,  16,  1,  p.  517. 
INTERPRETATION— of  state  constitution,  p.  vii. 

of  terms  in,  p.  vii. 
INVASION — suspension  of  writ  of  habeas  corpus,  1,  5,  p.  9. 

power  of  governor  to  repel,  8,  1,  p.  276. 

authority  to  contract  debts,  16,  1,  p.  517. 
INVOLUNTARY  SERVITUDE  PROHIBITED— 1,  18,  p.  61. 
ISSUANCE— of  corporation  stock,  12,  11,  p.  426. 
ITEMS — in  general  appropriation  bill,  4,  29,  p.  171. 

JEOPARDY — no  person  to  be  twice  put  in,  1,  13,  p.  23. 

JOINT  AND  SEVERAL— liability  of  stockholders,  12,  3,  p.  414. 

JOINT-STOCK  COMPANIES— included  in  term  "corporation," 

12,  4,  p.  421. 
liability  of  stockholders,  12,  3,  p.  414. 
may  be  assessed  for  income  taxes,  13,  11,  p.  479. 

JOURNAL — each  house  to  keep,  4,  10,  p.  121. 

ayes  and  noes  on  final  passage  of  bills,  4,  15,  p.  124. 

disapproval  of  governor  to  be  entered  on,  4,  16,  p.  125. 

votes  on  elections  to  be  entered  on,  4,  28,  p.  171. 

ayes  and  noes  on  removal  of  justices,  etc.,  to  be  entered,  6, 
10,  p.  254. 

oil  proposed  amendments  to  be  entered,  18,  1,  p.  525. 
JUDGES — of  superior  court  subject  to  impeachment,  4,  18,  p.  129. 

to  be  elected  for  each  superior  court,  6,  0,  p.  248. 

may  apportion  business  among  themselves,  6,  7,  p.  251. 

may  hold  court  in  anj-  county,  6,  8,  p.  251. 

pro  tempore,  when  may  try  case,  6,  8,  p.  251. 

legislature  may  grant  leave  of  absence,  6,  9,  p.  253. 

number  of  may  be  increase!,  6,  9,  p.  253. 

may  be  removed  by  legislature,  6,  10,  p.  254. 

cause  to  be  entered  on  journal,  6,  10,  p.  254. 


756  INDEX. 

JUDGES — of  inferior  courts,   powers,   duties,   and   responsibil- 
ities, Art.  6,  Sec.  13,  p.  261. 

not  to  receive  fees  or  perquisites,  6,  15,  p.  262. 

compensation  of,  6,  17,  p.  263. 

ineligible  to  other  office  during  term,  6,  18,  p.  266. 

not  to  charge  juries  as  to  matters  of  fact,  6,  19,  p.  266. 

prohibited  from  practicing  law,  6,  22,  p.  272. 

who  ineligible  to  office  of,  6,  23,  p.  272. 

affidavits  on  drawing  salary,  6,  24,  p.  272. 
JUDGMENT — on  impeachment,  extent  of,  4,  18,  p.  129. 

not  to  bar  trial  according  to  law,  4,  18,  p.  129. 

concurrence  of  supreme  justices  necessary,  6,  2,  p.  200. 

vacated  by  order  for  rehearing  in  bank,  6,  2,  p.  200. 

when  final,  6,  2,  p.  200. 

concurrence  of  four  justices,  when  necessary,  6,  2,  p.  200. 

all  decisions  to  be  in  writing,  6,  2,  p.  200. 

of  superior  court,  effect  of,  6,  6,  p.  248. 

JUDICIAL — a  department  of  government,  3,  1,  p.  79. 
powers,  where  vested,  6,  1,  p.  196. 
supreme,  court,  organization  of,  6,  2,  p.  200. 
election  of  justices,  6,  3,  p.  204. 
jurisdiction  of  supreme  court,  6,  4,  p.  205. 
jurisdiction  of  superior  court,  6,  5,  p.  227. 
superior  court,  how  constituted,  6,  6,  p.  248. 
apportionment  of  business  among  judges,  6,  7,  p.  249. 
judges  may  hold  court  in  other  county,  6,  8,  p.  251. 
legislature  may  grant  leave  of  absence,  6,  9,  p.  253. 
may  be  removed  from  office,  6,  10,  p.  254. 
justices  of  the  peace  for  cities  and  townships,  6,  2,  p.  200. 
what  are  courts  of  record,  6,  12,  p.  260. 
jurisdiction  of  inferior  courts,  6,  13,  p.  261. 
clerks  and  court  commissioners,  6,  14,  p.  261. 
fees  and  perquisites,  to  whom  forbidden,  6,  15,  p.  262. 
supreme  court  opinions  to  be  published,  6,  16,  p.  263. 
compensation  of  justices  and  judges,  6,  17,  p.  263. 
justices  and  judges  ineligible  to  other  office,  6,  18,  p.  266. 
judges  not  to  charge  jury  on  matters  of  fact,  6,  19,  p.  266. 
style  of  process,  6,  20,  p.  270. 

reporter  of  supreme  court  to  be  appointed,  6,  21,  p.  270. 
judges  not  to  practice  law,  6,  22,  p.  272. 


INDEX.  757 

JUDICIAIv — eligibility  of  justices  and  judges,  Art.  6,  Sec.  23, 

p.  272. 
condition  precedent  to  drawing  salary,  6,  24,  p.  272. 
JUDICIAL  DECISIONS— publication  of,  6,  16,  p.  263. 
JUDICIAL  NOTICE— to  be  taken  of  corporation  charters,  11,  8, 

p.  336. 

JUDICIAL  OFFICER— absence,  when  a  forfeiture  of  office,  6,  9, 
p.  253. 

removal  of,  6,  10,  p.  254. 

prohibited  from  receiving  fees  and  perquisites,  6,  15,  p.  2G2. 

oath  to  be  taken  by,  20,  3,  p.  534. 
JUDICIAL  POWER— where  vested,  6,  1,  p.  196. 

of  railroad  commissioners,  12,  22,  p.  437. 

JUDICIAL  PROCEEDINGS— to  be  published  in  English  only,  4, 
24,  p.  141. 

JURIES — local  and  special  legislation  prohibited,  4,  25,  p.  151. 

not  to  be  charged  as  to  matters  of  fact,  6,  19,  p.  266. 
JURISDICTION — of  inferior  courts,  local  and  special  acts  pro- 
hibited, 4,  25,  p.  151. 

of  supreme  court,  6,  4,  p.  205. 

of  superior  court,  6,  5,  p.  227. 

of  justices'  courts,  6,  11,  p.  255. 

of  courts  under  new  constitution  in  cases  transferred,  22,  3, 
p.  555. 
JUROR — no  religious  restriction,  1,  4,  p.  7. 

exclusion,  for  bribery,  forgery,  etc.,  20,  11,  p.  538. 

JURY — in  civil   ca^es  and   misdemeanors  number  may  be  agreed 
on,  1,  7,  p.  11, 
right  of  trial  by,  secured,  1,  7,  p.  11. 
trial  by,  may  be  waived  by  consent,  1,  7,  p.  11. 
three-fourths  may  render  verdict,  1,  7,  p.  11. 
to  determine  law  and  fact  in  libel  cases,  1,  9,  p.  16. 
to  ascertain  compensation  on  condemnation,  1,  14,  p.  42, 
not  to  be  charged  as  to  matters  of  fact,  6,  19,  p.  266. 
See  Trial  by  Jury. 

JUSTICES  AND  JUDGES — may  be  removed  by  concurrent  resolu- 
tion, 6,  10,  p.  254. 
causes  of  removal  to  be  entered  on  journal,  6,  10,  p.  254. 
ayes  and  noes  to  be  entered,  6,  10,  p.  254. 
ineligible  to  other  office,  6,  18,  p.  266. 


758  INDEX. 

JUSTICES   AND  JUDGES— who   eligible   to   office   of,   Art.   6, 
Sec.  23,  p.  266. 

compensation  of,  6,  17,  p.  263. 

not  to  draw  salary,  unless,  etc.,  6,  24,  p.  272. 
JUSTICES  OF  THE  PEACE— local  and  special  legislation  pro- 
hibited, 4,  25,  p.  151. 

invested  with  judicial  powers,  6,  1,  p.  196. 

number  to  be  fixed  by  legislature,  6,  11,  p.  255. 

concurrent   jurisdiction   in   forcible   entry   and   detainer,    6, 
11,  p.  255. 

and  in  foreclosure  of  liens  in  certain  cases,  6,  11,  p.  255. 

allowed  fees  and  perquisites,  6,  15,  p.  262. 

courts  not  abolished  by  new  constitution,  22,  3,  p.  555. 

JUSTICES  OF  SUPEEME  COURT— powers  and  duties  of,  6,  2, 
p.  200. 
election  of,  6,  3,  p.  204, 
authority  to  issue  writs,  6,  4,  p.  205. 
removal  from  office,  6,  10,  p.  254. 
compensation  of,  6,  17,  p.  263. 

ineligible  to  other  office  during  term,  6,  18,  p.  266. 
to  appoint  reporter,  6,  21,  p.  270. 
not  to  practice  law,  6,  22,  p.  272. 
who  not  eligible  to  office  of,  6,  23,  p.  272. 
affidavit  to  be  taken  on  drawing  salary,  6,  24,  p.  272. 

LABOR — Hens  secured  on  property,  20,  15,  p.  540. 

eight  hours  to  constitute  a  day's  work  on  public  works,  20,  17, 
p.  546. 

LAND  AND  HOMESTEAD  EXEMPTION— 17,  1,  p.  521. 

LAND  MONOPOLY  TO  BE  DISCOURAGED— 17,  2,  p.  522. 

LANDS — to  be  assessed  separate  from  improvements,  13,  2,  p.  464. 
of  same  quality  and  similarly  situated  to  be  assessed  at  the 

same  value,  13,  2,  p.  464. 
sectionized,  how  assessed,  13,  3,  p.  465. 
not  sectionized,  legislature  to  provide  for,  13,  3,  p.  465. 
fronting  on  harbor,  estuary,  bay,  etc.,  withheld  from  sale,  15, 
3,  p.  515. 


INDEX.  759 

LANDS — liolding   large    tracts   uncultivated    is    against    public 
policy,  Art.  17,  Sec.  2,  p.  522. 
belonging  to  state  to  be  granted  to  actual  settlors  only,  17,  3, 
p.  522. 

LANGUx\GE — laws,  official  writings,  etc.,  to  be  preserved  and  pub- 
lished in  English  only,  4,  24,  p.  141. 
LAWS — to  have  uniform  operation,  1,  11,  p.  18. 

bills  of  attainder  and  ex  post  facto  laws  prohibited.,  1,  16,  p. 

54. 
or  law  impairing  obligations  of  contract,  1,  16,  p.  54. 
enacting  clause,  4,  1,  p.  86. 
to  be  passed  by  bill  only,  4,  15,  p.  124. 
a  majority  of  members  necessary  to  pass,  4,  15,  p.  124. 
must  be  presented  to  governor  for  approval,  4,  16,  p.  125. 
how  passed  over  governor's  veto,  4,  16,  p.  125. 
how  become  laws  without  approval,  4,  16,  p.  125. 
to  be  accompanied  by  statement  of  receipts  and  expenditures, 

4,  22,  p.  133. 
governor  to  see  them  faithfully  executed,  5,  7,  p.  184. 
to  embrace  but  one  object,  etc.,  4,  24,  p.  141. 
how  revised  and  amended,  4,  24,  p.  141. 
to  be  published  in  English  only,  4,  24,  p.  141. 
local  and  special  acts  on  enumerated  subjects  prohibited,  4,  25, 

p.  151. 
creating  municipal  corporations  may  be  altered  or  repealed,  11, 

6,  p.  310. 
existing,  what  to  remain  in  force,  22,  1,  p.  551. 
relating  to  judicial  system  in  force  till  changed  by  legislature, 
22,  1,  p.  551. 
LEASE  OF  FRANCHISE— not  to  relieve  from  liability,  12,  10, 

p.  425. 
LEAVE  OF  ABSENCE— to  judicial  officers,  6,  9,  p.  253. 
LEGAL  DAY'S  WORK— 20,  17,  p.  546. 

LEGAL  HOLIDAYS — certain  writs  may  be  served  on,  6,  5,  p.  227. 
LEGALIZING  OFFICIAL  ACTS— by  special  laws  prohibited,  4, 

25,  p.  152. 
LEGISLATIVE  ACT— to  embrace  but  one  subject,  4,  24,  p.  141. 
See  Legislature;  Laws, 


760  INDEX. 

LEGISLATIVE  COMMITTEE— right  to  inspect  books  of  cor- 
poration, Art.  12,  Sec.  14,  p.  428. 

LEGISLATIVE  DEPARTMENT— 3,  1,  p.  79. 
power  vested  in,  4,  1,  p.  86. 

records  to  be  kept  by  secretary  of  state,  5,  19,  p.  193. 
See  Legislature. 
LEGISLATIVE    GRANTS— power   of   taxation   cannot   be   sur- 
rendered in,  13,  6,  p.  470. 
LEGISLATIVE  POWER— exercise  of,  p.  470. 
delegation  of,  p.  470. 

See  Legislature. 
LEGISLATIVE     PROCEEDINGS— on    proposed     amendments, 
18,  1,  p.  521. 
on  proceedings  to  revise,  18,  2,  p.  522. 
to  be  published  in  English  only,  4,  24,  p.  141. 

LEGISLATURE — to  provide  for  taking  depositions.  1,  13,  p.  23. 
power  to  revoke  special  privileges  and  immunities,  1,  21,  p. 

64. 
a  department  of  government,  3,  1,  p.  71. 
of  what  composed,  4,  1,  p.  86. 
power  vested  in  senate  and  assembly,  4,  1,  p.  86. 
limitation  of  time  for  introduction  of  bills,  4,  2,  p.  114. 
sessions  to  be  biennial,  4,  2,  p.  114. 
members,  when  and  how  elected,  4,  3,  p.  115. 
term  of  office,  4,  4,  p.  116. 
senators,  when  and  how  chosen,  4,  4,  p.  116. 
senate,  of  what  composed,  4,  5,  p.  116. 
number  of  senators  and  of  representatives,  4,  5,  p.  IIG. 
senatorial  and  assembly  districts,  4,  6,  p.  117. 
each  house  to  choose  its  officers,  4,  7,  p.  119. 
and  judge  of  election  of  its  members,  4,  7,  p.  119. 
majority  to  constitute  a  quorum,  4,  8,  p.  120. 
each  house  to  determine  rules  of  proceedings,  4,  9,  p.  121. 
two-thirds  required  to  expel  a  member,  4,  9,  p.  121. 
to  keep  and  publish  a  journal,  4,  10,  p.  121. 
members  to  be  privileged  from  arrest,  4,  11,  p.  122. 
vacancies,  how  filled,  4,  12,  p.  123. 
sessions  to  be  open,  4,  13,  p.  123. 
adjournments,  restriction  on  powers,  4,  14,  p.  123. 
laws,  how  passed,  4,  15,  p.  124. 


INDEX.  761 

LEGISLATURE— impeachment  and  trial  by,  Art.  4,  Sec.  17,  p. 

128. 
disqualification  of  member  to  hold  certain  offices,  4,  19,  p.  130. 
what  officers  not  eligible  to  membership,  4,  20,  p.  131. 
to  provide  punishment  of  embezzlement  and  defalcation,  4,  21, 

p.  132. 
to  what  institutions  aid  may  be  granted,  4,  22,  p.  133. 
moneys,  how  drawn  from  treasury,  4,  22,  p.  133. 
per  diem  and  mileage  to  members,  4,  23,  p.  140. 
officer,  attaches  and  employees,  4,  23a,  p.  141. 
acts  to  embrace  but  one  subject,  4,  24,  p.  141. 
proceedings  to  be  published  in  English  only,  4,  24,  p.  141. 
local  or  special  laws  not  to  be  passed,  4,  25,  p.  151. 
no  power  to  authorize  lotteries  or  gift  enterprises,  4,  26,  p.  167. 
vote  on  elections  to  be  viva  voce,  4,  28,  p.  171. 
general  appropriation  bill,  what  to  contain,  4,  29,  p.  171. 
appropriations  not  to  be  made  for  sectarian  purposes,  4,  30,  p. 

171. 
credit  of  state  or  subdivisions  of  state  not  to  be  given  or  lent, 

4,  31,  p.  172. 
extra  compensation  for  past  services  prohibited,  4,  32,  p.  176. 
to  regulate  telegraph  and  gas  companies,  4,  33,  p.  178. 
to  regulate  storage  and  wharfage  charges,  4,  33,  p.  178. 
special  appropriation  bills,  what  to  contain,  4,  34,  p.  178. 
lobbying  prohibited,  declared  a  felony,  4,  35,  p.  179. 
when  to  choose  governor,  5,  4,  p.  183. 

when  governor  may  convene  by  proclamation,  5,  9,  p.  188, 
power  when  so  convened,  5,  9,  p.  188. 
adjournment  by  governor,  5,  11,  p.  188. 
secretary  of  state  to  keep  records  of,  5,  18,  p.  193. 
may  abolish  office  of  surveyor  general,  5,  19,  p.  193. 
power  to  fix  compensation  of  state  officers,  5,  19,  p.  193. 
may  establish  inferior  courts,  6,  1,  p.  196. 
cannot  grant  leave  of  alisence  to  judicial  officer,  6,  9,  p.  253. 
may  increase  or  diminish  numlier  of  judges,  6,  9,  p.  253. 
may  remove  justice  or  judge,  6,  10.  p.  254. 
two-thirds  vote  required,  6,  10,  p.  254. 

to  determine  number  of  justices  of  the  peace,  6,  11,  p.  255. 
may  prescribe  other  courts  as  courts  of  record,  6,  12,  p.  260. 
may  fix  jurisdiction  of  inferior  courts,  6,  13,  p.  261. 
to  provide  for  election  of  supreme  court  clerk,  6,  14,  p.  2C1. 


7G2  INDEX. 

LEGISLATTJUE — and  fix  duties  and  compensation,  Art.  6,  Sec 

14,  p.  261. 
may  prov'de  for  appointment  of  court  commissioners,  6,  14,  p, 

261. 
to  provide  for  publishing  opinions  of  supreme  court,  6,  16,  p. 

263. 
authority  on  conviction  for  treason,  7,  1,  p.  174. 
restriction  on  power,  7,  1,  p.  174. 
to  provide  for  organization  and  disciplining  militia,  8,   1,  p. 

276. 
to  encourage  diffusion  of  knowledge  and  intelligence,  9,  1,  p. 

278. 
may  authorize  counties  to  unite  in  election  of  school  superin- 
tendent, 9,  3,  p.  279. 
to  provide  system  of  common  schools,  9,  5,  p.  281. 
may  establish  high  schools,  normal  schools,  etc.,  9,  6,  p.  282. 
duty  as  to  university  funds,  9,  9,  p.  288. 
to  classify  board  of  prison  directors,  10,  1,  p.  293. 
and  prescribe  their  duties,  10,  2,  p.  294. 
to  regulate  reformatory  institutions,  10,  2,  p.  294. 
to  direct  auditing  expenses  of  board,  10,  4,  p.  294. 
to  pass  laws  regulating  their  powers,  10,  5,  p.  295. 
to  define  powers  and  duties  of  clerk  of  state  prison,  10,  5,  p. 

295. 
to  provide  for  convict  labor,  10,  6,  p.  295. 
to  establish  system  of  county  governments,  11,  4,  p.  301. 
to  provide  for  election  of  county  officers  under  general  laws, 

11,  5,  p.  303. 
and  township  and  municipal  officers,  11,  5,  p.  303. 
to  prescribe  their  duties  and  term  of  office,  11,  5,  p.  303. 
and  for  their  strict  accountability,  11,  5,  p.  303. 
may  levy  taxes  on  municipal  corporations,  11,  12.  p.  386. 
cannot  delegate  power  to  commissions,  corporations,  etc.,  11, 

13,  p.  390. 
to  provide  for  punishment  for  use  of  public  funds,  11,  17,  p. 

396. 
cannot  grant  charter  for  banking,  12,  5,  p.  422. 
not  to  extend  franchise  or  remit  forfeiture,  12,  7,  p.  423. 
not  to  relieve  corporation  from  liability,  12,  10,  p.  425. 
Tested  with  power  to  regulate  fares  and  freights,  12,  20,  p. 

434. 


INDEX.  763 

LEGTSLATTJR'E — may  prescribe  penalty  for  extra  charges,  Art. 

12,  Sec.  22,  p.  437. 
may  remove  railroad  commissioner,  12,  22,  p.  437. 
may  fill  vacancy  in  commiFsion,  12,  22,  p.  437. 
may  enforce  forfeiture  of  charter  for  excessive  charges  of 

fares  and  freights,  12,  23,  p.  443. 
to  pass  laws  to  enforce  provisions  concerning  corporations,  12, 

24,  p.  445. 
may  provide  for  deduction  of  debts  on  assessment,  13,  1,  p. 

447. 
to  provide  for  assessment  of  lands  in  small  tracts,  13,  3,  p. 

465. 
not  to  surrender  power  of  taxation,  13,  6,  p.  470. 
may  provide  for  payment  by  installments,  13,  6,  p.  470. 
may  require  annual  statement  under  oath,  13,  6,  p.  470. 
may  provide  for  income  taxes,  13,  11,  p.  479. 
may  provide  for  a  poll  tax,  13,  12,  p.  479. 
to  carry  out  taxation  provisions,  13,  13,  p.  480. 
to  fix  penalty  for  failure  to  fix  water  rates,  14,  1,  p.  508'. 
to  regulate  sale  and  rent  of  water,  14,  1,  p.  508. 
to  provide  against  obstructions  to  navigation,  15,  2,  p.  515. 
restriction  on  power  to  create  debt,  16,  1,  p.  517. 
to  protect  homesteads,  17,  1,  p.  521. 
to  discourage  land  monopoly,  17,  2,  p.  522. 
to  regulate  grants  of  state  lands,  17,  3,  p.  522. 
to  protect  from  alien  paupers,  etc.,  19,  1,  p.  528. 
to  provide  for  their  removal,  19,  1,  p.  528. 
to  pass  police  regulations,  19,  1,  p.  528. 
to  enforce  provisions  against  Chinese,  19,  2,  p.  529. 
to  discourage   immigration   of  certain   foreigners,   19,  4,  p. 

530. 
to  enforce  removal  of  Chinese,  19,  4,  p.  530. 
to  prescribe  penalties  for  introduction  of  coolies,  19,  4,  p. 

530. 
to  delegate  power  to  remove  Chinese,  19,  4,  p.  530. 
legislators  to  take  and  subscribe  oath;  20,  3,  p.  534. 
to  direct  appointment  or  election  of  certain  officers,  20,  4, 

p.  535. 
to  direct  bringing  suits  against  state,  20,  6,  p.  536. 
to  regulate  elections  by  general  laws,  20,  11,  p.  538. 
to  provide  for  institution  of  state  board  of  health,  20,  14, 

p.  540, 


764  INDEX. 

LEGISLATURE  —  to    provide    for    enforcement    of    liens    of 
mechanics,  etc.,  Art.  20,  Sec.  15,  p.  540. 
may  provide  for  expenses  of  convention,  20,  19,  p.  548. 

LEGITIMATION    OF     CHILDREN  — special     legislation     pro- 
hibited, 4,  25,  p.  151. 

LELAND    STANFORD    .JUNIOR    UNIVERSITY— property    of 
exempt  from  taxation,  9,  10,  p.  290. 
trusts  for  confirmed,  9,  10,  p.  290. 

LIABILITY— not  to  be   released   by   special   legislation,   4.  25. 
p.  151.  >     >       J 

of  stockholders  of  corporations,  12,  3,  p.  414. 
of  franchise  not  to  be  released,  12,  lO,  p.  425*. 
of  corporation,  where  may  be  sued,  12,  16,  p.  430. 

LIBEL — criminal  prosecutions  for,  1,  9,  p.  16. 
places  of  trial,  1,  9,  p.  16. 
evidence  in  cases  of,  1,  9,  p.  16. 
jury  to  judge  of  law  and  fact,  1,  9,  p.  16. 

LIBERTY  AND  PROPERTY— protection  of,  1,  13,  p.  23. 
LIBERTY  OF  CONSCIENCE  SECURED— 1,  4,  p.  7. 
licentiousness  not  excused,  1,  4,  p.  7. 

LIBERTY  OF  SPEECH— not  to  be  restrained,  1,  9,  p.  16. 
LICENSE — cannot  be  granted  by  special  legislation,  4,  25,  p. 

LICENSE  REGULATIONS— p.  372. 

LICK  SCHOOL — See   California   School   of  Mechanical  Arts. 

LIENS — cannot  be  created  by  special  legislation,  4,  25,  p.  151. 

on  property,  created  by  taxation,  13,  4,  p.  465. 

jurisdiction  of  superior  courts,  6,  5,  p.  227. 

jurisdiction  of  justices  of  the  peace,  6,  2,  p.  200. 

of  mechanics,  materialmen,  etc.,  20,  15,  p.  540. 

LIEUTENANT-GOVERNOR— liable  to  impeachment,  4.   18.  p. 
129.  '     >       >  i^ 

whe*i  and  how  to  be  elected,  5,  15,  p.  190. 
term  of  office,  5,  15,  p.  190. 
to  be  president  of  the  senate,  5,  15,  p.  190. 
disqualification  for  other  office,  5,  15,  p.  190. 


INDEX.  765 

LIEUTENANT-GOVERNOR— when  to  act  as  governor,  Art.  5, 
Sec.  16,  p.  190. 
compensation  of^  5,  19,  p.  193. 

LIFE,   LIBERTY,  AND  PROPERTY— inalienable  rights,   1,  1, 
p.  3. 
not  to  be  deprived  of  without  due  process   of  law,  1,   13, 
p.  23. 

LIMITATION  OF  ACTIONS— special  legislation  prohibited,  4, 
25,  p.  15L 

LOBBYING— a  felony,  4,  35,  p.  179. 

what  constitutes,  4,  35,  p..  179. 
LOCAL  LEGISLATION— on  certain  matters,  prohibited,  4,  25, 
p.  151. 
in  all  cases  where  general  laws  may  be  made  applicable,  4, 
25,  p.  151. 
LOCAL  POLICE  AND  SANITARY  LAWS— counties  and  cities 
to  enact,  11,  11,  p.  372. 

LOS  ANGELES— two  superior  judges  for,  6,  6,  p.  248. 
salary  of  superior  judge,  6,  17,  p.  263. 

LOTTERIES— prohibited,  4,  26,  p.  167. 

LUCRATIVE  OFFICE— defined,  4,  20,  p.  131. 

MAJORITY — special   statute   cannot  declare   person   of  age,  4, 
25,  p.  151. 
of  legislature  to  constitute  a  quorum,  4,  8,  p.  120. 
necessary  to  pass  a  bill,  4,  15,  p.  124. 
MALFEASANCE   IN  OFFICE— conviction  for,  a  disfranchise- 
ment, 20,  11,  p.  538. 
excludes  from  office,  juries,  etc.,  20,  11,  p.  538. 
MANAGERS— of  corporations,  how  elected,  12,  12,  p.  427. 

MANDAMUS — supreme  court  may  issue,  6,  4,  p.  205. 
original  jurisdiction  in  superior  court,  6,  5,  p.  227. 

MANDATORY — character    of    provisions    in    new    constitution, 

I,  22,  p.  66. 

MANUFACTURING  SOCIETY— manner  of  electing  officers,  12, 

II,  p.  426. 

MARGIN  CONTRACTS— for  stock,  void,  4,  26,  p.  167. 


766  INDEX, 

MAREIAGE — conformity  to  religious  forms  not  required,  Art. 
20,  Sec.  7,  p.  537. 

separate  property  of  husband  and  wife,  20,  8,  p.  537. 

original  jurisdiction  in  annulment  of,  6,  5,  p.  227. 
MATERIALMEN — secured  by  lien  on  property,  20,  15,  p.  540. 
MAYOR — to  fill  vacancy  in  board  of  supervisors,  11,  7,  p.  320, 

to  certify  copy  of  city  charter,  11,  8,  p.  336. 
MECHANIC  ARTS— to  be  supported,  etc.,  9,  9,  p.  288. 
MECHANICS — secured  by  lien  on  property,  20,  15,  p.  540. 

legislature  to  provide  for  enforcement  of,  20,  15,  p.  540. 
MEMBERS  OF   ASSEMBLY— when   and  how  elected,  4,  3,  p. 
115. 

term  of  office,  4,  3,  p.  115. 

qualifications  of,  4,  4,  p.  116. 

how  and  when  elected,  4,  5,  p.  116. 

to  be  privileged  from  arrest,  4,  11,  p.  122, 

for  what  offices  disqualified,  4,  19,  p.  130. 

per  diem  and  mileage,  4,  23,  p.  140. 

influenced  by  promise  of  reward  guilty  of  felony,  4,  35,  p. 
179. 

not  to  receive  free  pass  on  railroad,  12,  19,  p.  434. 

to  take  and  subscribe  oath,  20,  3,  p.  534. 
MEMBERS    OF   LEGISLATURE— limitation    of   pay    of,   4,    2, 
p.  114. 

to  be  privileged  from  arrest,  4,  11,  p.  122. 

for  what  offices  disqualified,  4,  19,  p.  130. 

restriction  as  to  power  to  adjourn,  4,  14,  p.  123. 

to  vote  viva  voce,  4,  28,  p.  171. 
MERCANTILE    SOCIETIES— manner    of    electing    officers,    12, 

11,  p.  426. 
MESSAGE— of  governor  to  legislature,  5,  10,  p.  188. 
MILEAGE— to  members  of  legislature,  4,  23,  p.  140. 
MILITARY— subordinate  to  civil  power,  1,  12,  p.  23. 

standing  army  not  to  be  kept  in  time  of  peace,  1,  12,  p.  23, 
See  Militia. 
MILITIA — no  imprisonment  for  fines,  1,  15,  p.  53. 

organization  and  discipline  of,  8,  1,  p.  276. 

restriction  as  to  carrying  banners  or  flags,  8,  2,  p.  276, 

officer,  when  not  eligible  to  civil  office,  4,  20,  p,  131. 


INDEX.  767 

MILITIA — governor  to  be  commander-in-cliief,  Art.  5,  Sec,  5, 
p.  184. 
to  sign  and  seal  commissions,  5,  14,  p.  189. 
power  of  governor  to  call  out,  8,  1,  p.  276. 
governor  to  remain  in  command  of,  5,  16,  p.  190. 
exemption  of  electors  from  duty  in,  2,  3,  p.  77. 
MINOES — cannot  be  affected  by  special  statute,  4,  25,  p.  151. 

as  to  property  of,  4,  25,  p.  151. 
MISAPPROPEIATION— of   public   moneys,   to   disfranchise,   2, 

1,  p.  69. 
MISCELLANEOUS  SUBJECTS— 20,  1,  p.  532. 
MISDEMEANOR — in  office,  provisions  to  be  made  for  punish- 
ment of,  4,  18,  p.  129. 
local  and  special  legislation  prohibited,  4,  25,  p.  151. 
original  jurisdiction  in  superior  courts,  6,  5,  p.  227. 
MONEY — how  and  when  drawn  from  treasury,  4,  22,  p.  133. 
in  treasury  cannot  be  refunded  under  special  act,  4,  25,  p. 

15L 
paid  on  stock  bought  on  margin  recoverable  back,  4,  26,  p. 

167. 
in  hands  of  municipal  officers  to  be  paid  into  treasury,  11, 

16,  p.  394. 
officers   using  or  making  profit  guilty  of  a  felony,   11,  17, 

p.  396. 
corporation  can  issue  nothing  but  lawful  money  of  United 

States,  12,  5,  p.  422. 
liable  to  taxation,  13,  1,  p.  447. 

to  be  applied  to  payment  of  state  debt,  16,  1,  p.  517. 
deposit  of,  11,  161/2,  p.  394, 

MONGOLIANS— See  Chinese. 
MORTGAGES— taxation  of,  13,  4,  p.  465. 

how  taxed,  13,  4,  p.  465. 

contract  of  debtor  to  pay  tax  void,  13,  5,  p.  468. 
MUNICIPAL  AFFAIRS— what  are,  11,  6,  p.  470. 
MUNICIPAL  CORPORATION— prohibited  from  aiding  sect  or 
creed,  4,  30,  p.  171. 

prohibited  from  loaning  or  giving  its  credit,  4,  31,  p.  112. 

shall  not  be  created  by  special  acts,  11,  6,  p.  310. 

to  be  organized  and  classified  by  general  laws,  11,  6,  p.  310. 

and  subject  to  control  of  general  laws,  11,  6,  p.  310. 


768  INDEX. 

MUNICIPAL  CORPOEATION— charter  of  city,  liow  detained, 
Art.  11,  Sec.  8,  p.  336. 
not  to  be  relieved  from  proper  share  of  taxes,  11,  10,  p. 

371. 
power  to  assess  and  levy  taxes,  11,  12,  p.  386, 
authority  as  to  improvements,  11,  13,  p.  390. 
authority  to  appoint  inspection  officers,  11,  14,  p.  393. 
private  property  not  to  be  taken  for  debts  of,   11,   15,  p. 

393. 
moneys  to  be  deposited  with  treasurer,  11,  16,  p.  394. 
.  use  of  same  by  official  a  felony,  11,  17,  p.  396. 
property  of  exempt  from  taxation,  13,  1,  p.  447. 
prohibited  from  employing  Chinese,  19,  3,  p.  530. 
MUNICIPAL  DEBTS— liability  of  new  counties,  11,  3,  p.  298. 
private  property  not  to  be  taken  for,  11,   15,  p.   393. 
restriction  on  power  to  incur,  11,  18,  p.  396. 
MUNICIPAL   FINE — appellate   jurisdiction   of   supreme   court, 
6,  4,  p.  205. 
original  jurisdiction  of  superior  court,  6,  5,  p.  227. 

MUNICIPAL  OFFICERS— election  or  appointment  of,  11,  5,  p. 
303. 
compensation  not  to  be  increased  during  term,  11,  9,  p.  3G9. 
term  not  to  be  extended,  11,  9,  p.  369. 
to  pay  moneys  into  the  treasury,  11,  16,  p.  394. 
MUNICIPAL  TAXES— power  delegated  to  municipality,  11,  12, 
p.  388. 

NAMES — change  of,  special  legislation  prohibited,  4,  25,  p.  151. 
NATURALIZATION— power  of  superior  court,  6,  5,  p.  227. 
NAVIGABLE  WATERS— harbor  frontages  as,  15,  1,  p.  515. 

to  be  protected,  15,  1,  p.  515. 
NAVIGATION— freedom  of  to  be  secured,  15,  2,  p.  515. 
NEGLECT— of  supervisors  to  fix  water  rates,  penalty  for,  14, 
1,  p.  508. 

rights  of  parties  interested,  14,  1,  p.  508. 
NEVADA — salary  of  superior  judge,  6,  17,  p.  263. 
NEW  COUNTIES — restrictions  on  formation   of,  11,  3,  p.  298. 
NONJUDICIAL  DAYS— certain  writs  served  on,  6,  5,  p.  227. 


INDEX.  769 

NORMAL  SCHOOL— may  be  established  by  legislature,  Art.  9, 

Sec.  6,  p.  282. 
NOTICE — of  meeting  for  increase  of  corporate  stock,  12,  11,  p. 

426. 
NUISANCES — appellate  jurisdiction  of  supreme  court,  6,  4,  p. 

205. 
original  jurisdiction  of  superior  court,  6,  5,  p.  227. 

OATH  OF  OFFICE— member   of  legislature  to   take,   20,  3,  p. 
534. 
form  of  oath  of  office,  20,  3,  p.  534. 
executive  and  judicial  officers  to  take,  20,  3,  p.  534. 

OATH  OR  AFFIDAVIT— to  sustain  issue  of  warrants,  1,  19,  p. 

63. 
of  senators  on  trial  by  impeachment,  4,  17,  p.  128. 
to  be  taken  by  justices  and  judges  on  drawing  salary,  6, 

24,  p.  272. 
form  of  oath  of  office,  20,  3,  p.  534. 
OBLIGATIONS— of  contract  not  to  be  impaired,  1,  16,  p.  54. 
existing,   unaffected   by   adoption   of   new   constitution,   22, 

2,  p.  554. 
OFFENSES — to  be  prosecuted  by  indictment  or  information,  1, 

8,  p.  14. 
no  person  to  be  put  twice  in  jeopardy,  1,  3,  p.  7. 
right  of  trial  by  jury  secured,  1,  7,  p.  11. 
impeachment  of  officer  for,  4,  18,  p.  129. 
power  of  governor  to  grant  pardon  for,  7,  1,  p.  174. 

OFFICE  OF   CORPORATION— to  be   maintained  in   state,   12, 

14,  p.  428. 
OFFICES — property  qualification  not  necessary,  1,  24,  p.  67. 
disqualification  in  certain  cases,  4,  19,  p.  130. 
who  ineligible  for,  4,  20,  p.  131. 
embezzlement   and   defalcation   to  disqualify  for,  4,   21,  p. 

132. 
cannot  bo  created  by  special  legislation,  4,  25,  p.  151. 
vacancy,  when  filled  by  governor,  5,  8,  p.  184. 
to  be  maintained  by  corporation,  12,   14,  p.  428. 
forfeiture  for  acceptance  of  free  passes,  12,  19,  p.  434. 
Constitution— 49 


770  INDEX. 

OFFICES— oath  of  office,  form  of,  Art.  20,  Sec.  3,  p.  534. 
no  declaration  or  test  required,  20,  3,  p.  534. 
created  by  law,  how  filled,  20,  4,  p.  535. 
offering  bribe  to  procure  election  a  disqualification,  20,  10, 

p.  538. 
exclusion  from  for  bribery,  forgery,  etc.,  20,  11,  p.  538. 
term  of  when  not  herein  declared,  20,  16,  p.  542. 
terms  of,  when  to  commence,  20,  20,  p.  548. 
hereafter  created  to  be  subject  to  legislative  direction,  20, 

4,  p.  535. 

OFFICER — fees  and  salaries,  special  legislation  prohibited,  4, 

25,  p.  151. 
not  to  be  allowed  extra  compensation,  4,  32,  p.  176. 
to  regulate  rates  of  charges  of  corporations,  4,  33,  p.  178. 
who  impeachable,  4,  18,  p.  129. 
of  departments  to  furnish  information  to   executive,  5,   6, 

p.  184. 
of  United  States  not  eligible  for  governor,  5,  12,  p.  189. 
of  militia  elected  and  appointed  pursuant  to  law,  8,  1,  p. 

276. 
to  be  commissioned  by  governor,  8,  1,  p.  276. 
of  citv,  county,  or  town,  term  of  office  and  compensation, 

11,  9,  p.  369. 
using  or  making  profit  out  of  public  money  a  felony,  11,  17, 

p.  396. 
of  corporation,  residence  to  be  entered  in  books,  12,  14,  p. 

428. 
not  to  be  interested  in  furnishing  supplies,  etc.,  12,  18,  p, 

433, 
of  state,  acceptance  of  free  passes  a  forfeiture  of  office,  12, 

19,  p.  434. 
or  corporation,  fined  and  imprisoned  for  extortion,   12,  22, 

p.  437. 
executive  and  judicial,  to  take  oath  of  office,  20,  3,  p.  534. 
for  offices  hereafter  created  to  be  elected  or  appointed,  20, 

4,  p.  535. 
when  to  hold  office  at  pleasure  of  appointing  power,  20,  16, 

p.  542. 
term  not  to  exceed  four  years,  20,  16,  p.  542. 
term  of,  when  to  commence,  20,  20,  p.  548. 
term  of  at  first  election,  22,  10,  p.  538. 


INDEX.  773 

OFFICIAL  ACTS — cannot  be  validated  by  special  acts,  Art.  4, 
Sec.  25,  p.  151. 
record  to  be  kept,  5,  18,  p.  193. 
OFFICIAL  OATH— 20,  3,  p.  534. 

OPINIONS  OF  SUPEEME  COURT— to  be  published,  6,  16,  p. 
263. 
free  for  publication  by  anyone,  6,  16,  p.  263. 
ORDINANCE— to  fix  water  rates,  14,  1,  p.  508. 

ORGANIZATION— of  supreme  court,  6,  2,  p.  200. 

of  superior  court,  6,  6,  p.  248. 

of  municipal  corporations,  11,  6,  p.  310. 
ORIGINAL  JURISDICTION— of  superior  court,  6,  5,  p.  227. 
ORPHANS — state  may  provide  for  support  of,  4,  22,  p.  133. 

PANAMA-PACIFIC  INTERNATIONAL  EXPOSITION  — 
amendments  to  San  Francisco  charter  in  aid  of,  11,  8a, 
p.  365. 

municipal  bonds  for,  11,  8a,  p.  365. 

use  of  Golden  Gate  Park  for,  11,  8a,  p.  365. 

use  of  school  lands  for,  11,  8a,  p.  365. 

use  of  public  streets  for,  11,  8a,  p.  365. 

state  bonds  for,  4,  22,  p.  365. 

commission,  4,  22,  p.  365. 

PARDON — power  of  governor  to  grant,  7,  1,  p.  274.- 
restriction  on  power,  7,  1,  p.  174. 

PARKS — special  legislation  prohibited,  4,  25,  p.  151. 

PARTIES — corporations  may  sue  and  be  sued,  12,  4,  p.  421. 

PASSAGE  OF  BILLS— mode  of,  4,  15,  p.  124. 
when  bill  becomes  a  law,  4,  16,  p.  125. 

PAUPERS— exemption  from  poll  taxes,  13,  12,  p.  479. 
PAYMENT  OF  TAX— by  installments,  13,  7,  p.  470. 
PEACE  AND  SAFETY— to  be  secured,  1,  4,  p.  7. 
PENALTJI'vS — cannot  be  remitted  by  special  legislation,  4,  25, 
p.  151. 
for  absence  of  member  of  legislature,  4,  8,  p.  120. 
on  transportation  companies  for  excessive  charges,   12,  22, 
p.  437. 


772  INDEX. 

PENALTIES — legislature    may    prescribe    additional,    Art.    12, 
Sec.  22,  p.  437. 

of  supervisors  for  neglect  to  fix  water  rates,  14,  1,  p.  508. 

for  unduly  influencing  elections,  20,  11,  p.  538. 
PEOPLE — political  power  inherent  in,  1,  2,  p.  6. 

right  of  free  assemblage  and  petition,  1,  10,  p.  17. 

right  of  security  from  searches  and  seizures,  1,  19,  p.  63. 

rights  not  impaired  by  enumeration  in  constitution,  1,  23, 
p.  67. 

style  of  process  in  name  of,  6,  20,  p.  270. 

PER  DIEM— of  legislators,  4,  23,  p.  140. 

of  lieutenant-governor,  5,  19,  p.   193. 

of  delegates,  legislature  may  provide  for,  20,  19,  p.  548. 
PERJURY — disqualification  on  conviction  for,  4,  19,  p.  130. 

to  exclude  from  office,  jury,  and  right  of  suffrage,  20,  11, 
p.  538. 

PERPETUITIES— prohibited,   except  for   certain   purposes,   20, 

9,  p.  15L 
PERSONAL  AND  PROPERTY  RIGHTS— security  of,  1,  13,  p. 

23. 
PERSONAL    PROPERTY— exemption    of,    from    taxation,    13, 

lOi/o,  p.  479. 
PETITION— right  of  secured,  1,  10,  p.  17. 

PLACE  OF  TRIAL— in  libel  cases,  1,  9,  p.  16. 
may  be  changed,  1,  9,  p.  16. 
of  real  actions,  6,  5,  p.  227. 
in  suits  affecting  corporations,  12,  16,  p.  430. 

PLACES  OF  VOTING— to  be  fixed  by  general  laws,  except,  4, 

25,  p.  151. 
PLURALITY  VOTE— constitutes  a  choice,  20,  13,  p.  539. 

POLICE   COURTS— not   abolished  by   new   constitution,   22,   3, 

p.  534. 
POLICE  JUDGES — local  and   special   legislation   prohibited,  4, 

25,  p.  151. 

POLICE  LAWS— legislature  to  pass,  19,  1,  p.  528. 

POLICE  POWERS — of  state,  p.  100. 

corporations  subject  to  exercise  of,  12,  8,  p.  424. 


INDEX.  773 

POLICE  REGULATIONS— county,  city,  or  town,  may  enforce, 
Art.  11,  Sec.  11,  p.  372. 

POLITICAL     CORPORATION— prohibited     to     give     or     lend 

credit,  4,  31,  p.  172. 
POLITICAL  POWERS— inherent  in  people,  1,  2,  p.  6. 
POLITICAL   SUBDIVISION— not   to   subscribe   to    corporation 

stock,  4,  31,  p.  172. 
POLL  TAXES— legislature  may  provide  for,  13,  12,  p.  479. 

to  be  paid  into  school  fund,  13,  12,  p.  479. 
POPULAR  ASSEMBLIES— rights  of  citizens,  1,  10,  p.  17. 
POSSESSION    OF    PROPERTY— rights    of    foreigners,    1,    17, 

p.  6L 
POSTMASTER— when   may  hold   civil   oflSce,   4,   20,   p.   131. 
POWER  OF  TAXATION— not  to  be  surrendered  in  grant,  13, 

6,  p.  470. 
POWERS  OF  GOVERNMENT— how  distributed,  3,  1,  p.  79. 

legislative,  where   vested,  4,   1,   p.   86. 

executive,  where  vested,   5,   1,  p.   182. 

judicial,  where  vested,  6,  1,  p.  196. 

pardoning  power,  7,  1,  p.  174. 

militia,  8,  1,  p.  276. 

municipal  corporations,  11,  16,  p.  394. 
PRACTICE  IN  COURTS— local  and  special  legislation  prohib- 
ited, 4,  25,  p.  151. 
PREAMBLE — to   constitution,  1,   1,  p.   3. 
PRESIDENT  OF  SENATE— <vho  is,  5,  15,  p.  190. 

pro  tempore,  when  to  act  as  governor,  5,  15,  p.  190. 
PRESIDING  JUDGE— to  be  chosen,  6,  6,  p.  248. 

duties  of,  6,  6,  p.  248. 
PRESS— liberty  of,  secured,  1,  9,  p.  16. 
PRIMARY  ELECTIONS— provision  for,  2,  2y-,  p.  73. 
PRINCIPAL    PLACE    OF   BUSINESS— of    corporations    to    be 

maintained,  12,  14,  p.  428. 
PRINTING— bills  to  be  printed,  4,  15,  p.  124. 
PRISON  DIRECTORS— See  State  Prison  Directors. 


774  INDEX. 

PRIVILEGE — from   arrest,   of  members  of  legislature,  Art.  4, 
Sec.  11,  p.  122. 
of  electors  on  election  day,  2,  2,  p.  73. 
PRIVILEGES  AND  IMMUNITIES— of  citizens,  1,  21,  p.  64, 
cannot  be  granted  by  special  act,  4,  25,  p.  151. 
reservation  of  power  in  legislature  to  revoke  or  repeal,  1, 
21,  p.  64. 

See  Immunities. 
PROBATE  MATTERS — ^appellate  jurisdiction  in  supreme  court, 
6,  4,  p.  205. 
original  jurisdiction  in  superior  court,  6,  5,  p.  227. 

PROCESS — privilege   of  member  of  legislature  from,  4,   11,  p. 
122. 
of  supreme  court,  6,  4,  p.  205. 
of  superior  courts,  extent  of,  6,  5,  p.  227. 
style  of,  6,  20,  p.  270. 

power  of  railroad  commissioners  to  issue,  12,  22,  p.  4  37. 
to  compel  fixing  of  water  rates,  14,  1,  p.  508. 
PROCLAMATION — for  special  session   of  legislature,   5,   9,   p. 
188. 
on  revision   of  constitution,  18,  2,  p.  526. 
on  computation  of  votes  on  new  constitution,  22,  9,  p.  530. 
PROFESSION — sex  not  to   disqualify  from  pursuit  of,  20,   18, 

p.  547. 
PROHIBITION — jurisdiction  of  supreme  court,  6,  4,  p.  205. 
of  superior  courts,  6,  5,  p.  227. 
certain    writs    may    be    ser\-«d    on    holidays    and    nonjudicial 

days,  6,  5,  p.  227. 
of  introduction  of  Chinese,  19,  4,  p.  530. 
PROHIBITORY — provisions  of  constitution,  when,  1,  22,  p.  66. 
PROMOTION — ^of  intellectual  improvement,  9,  1,  p.  278. 
PROPERTY — right  to  acquire,  possess,  and  defend,  1,  1,  p.  3. 
persons  not  to  be  deprived  of  witliout  due  process  of  law, 

1,  13,  p.  23. 
not  to  be  taken  or  injured  for  public  use,  etc.,  1,  14,  p.  42. 
cannot  be  exempted  by  special  legislation,  4,  25,  p.   151. 
liability  to  taxation,  what  includes,  13,  1,  p.  447. 
PROPERTY  QUALIFICATION — not  to  be  required  to  vote  or 
hold  office,  1,  24,  p.  67. 


INDEX.  775 

PEOSECUTIONS— to  be  conducted  in  name  of  people,  Art.  6, 
Sec.  20,  p.  270. 
existing  unaffected  by  adoption  of  new  constitution,  22,  2, 

p.  554. 
right  of  trial  by  jury  seciired,  1,  7,  p.  11. 
riglits  of  party  accused,  1,  13,  p.  23. 
PEOTECTION — from   alien    paupers,    criminals,    etc.,    19,    1,   p. 

528. 
PROVISIONS    OF    CONSTITUTION— mandatory    and    prohib- 
itory, 1,  22,  p.   66. 

See  Constitution;   State  Constitutions. 

PUBLIC  DEBTS — private  property  not  to  be  taken  for,  11,  15, 
p.  393. 

PUBLIC    FUNDS — statement    of    receipts   and    expenses    to   be 
published,  4,  22,  p.  133. 
to  be  deposited  with  treasurer,  11,  16,  p.  394. 
making  profit  on,  or  using,  a  felony,  11,  17,  p.  396. 

PUBLIC  GRANTS — power  to  tax  not  to  be  surrendered  or  sus- 
pended, 13,  6,  p.  470. 

PUBLIC    GROUNDS— special    legislation    prohibited,    4,    25,    p. 

131. 
PUBLIC    IMPROVEMENTS— in    cities,    how   to    be    made,    11, 

19,  p.  403. 
PUBLIC  LANDS— right  to  fish  on,  1,  25,  p.  68. 

suitable  for  cultivation,  17,  3,  p.  522. 
PUBLIC  OFFICERS — when  not  to  receive  extra  compensation, 

.      4,  32,  p.  176. 
PUBLIC  SAFETY — suspension   of  writ  of  habeas  corpus,  1,  5, 

p.  9. 
PUBLIC  SCHOOLS — legislature   to   provide   a  system   of,  9,  5, 
p.  281. 
what  to  include,  9,  6,  p.  282. 
property  exempt  from  taxation,  13,  1,  p.  447. 
PUBLIC  USE — in  eminent  domain  defined,  p.  43. 
legislative   discretion,  p.  43. 
water  rights  declared  for,  14,  1,  p.  42. 
PUBLIC  UTILITIES — regulation    of    by    railroad    commission, 
12,  23,  p.  443. 


776 


INDEX. 


PUBLIC  WORKS — on    streets    of    city,    provisions    concernine. 
Art.  11,  Sec.  19,  p.  403.  ^ 

Chinese  prohibited  from  employment  on,  19,  3,  p.  530. 
eight  hours  to  constitute  a  day's  work,  20,  17,  p.  546. 
PUBLICATION — of  proceedings  of  each  house,  4,  10,  p.  121. 
of  receipts  and  expenditures  at  each  session,  4,  22,  p.  133. 
of  all  laws  and  official  writings  to  be  in  English.  4,  24,  p. 
141.  >     >       >  f 

of  judicial  decisions,  6,  16,  p.  263. 
of  proposed  city  charter,  11,  8,  p.  336. 
of  rates  of  fares  and  freights,  12,  22,  p.  437, 
of  proposed  amendments  to  constitution,  18,  1,  p.  525. 
PUNISHMENTS— cruel  and  unusual,  prohibited,  1,  6,  p.  9. 

for  extortion  in  rates  of  fares  and  freights,  12,  22,  p.  437. 

QUALIFICATION— of  voters,  2,  1,  p.  69. 
property  not  essential  to,  1,  24,  p.  67. 
of  members  of  legislature,  4,  4,  p.  116. 
each  house  to  judge  of,  4,  7,  p.  119. 
of  governor,  5,  3,  p.  183. 
of  lieutenant-governor,  5,  15,  p.  190. 
of  justices  of  supreme  court,  6,  23,  p.  272. 
of  judges  of  superior  courts,  6,  23,  p.  272. 
declaration  or  test  not  required,  20,  3,  p.  534. 
for  ofHce  of  public  trust,  20,  3,  p.  534. 
for  office  of  county  commissioner,  12,  22,  p.  437. 

QUAETERING  OP  SOLDIERS— provisions  concerning  1  12 
p.  23.  '       ' 

QUORUM — majority  of  house  to  constitute,  4,  8,  p.  120. 

less  may  adjourn  and  compel  attendance,  4,  8,  p.  120. 
QUO  WARRANTO— power  of  superior  court,  6,  5,  p.  227. 

RAILROAD  COMMISSIONERS— use  of  free  passes  on  rail- 
roads, 12,  19,  p.  434. 

to  be  appointed,  12,  22,  p.  437. 

salary  and  term  of  office,  12,  23,  p.  437. 

qualification   of,  12,  22,  p.  439. 

not  to  be  interested  in  any  transportation  company,  12  22 
p.  437. 


INDEX.  777 

EAILEOAD      COMMISSIONERS  —  as     stockholder,     creditor, 

agent,  or  employee,  Art.  12,  Sec.  22,  p.  437. 
powers  and  duties  of,  12,  22,  p.  437. 
to  prescribe   uniform  system   of   keeping   accounts,   12,   22, 

p.  437. 
to  fix  rates  of  fares  and  freight,  12,  22,  p.  437. 
and  publish  the  same  from  time  to  time,  12,  22,  p.  437. 
rates  fixed  by  them  to  be  deemed  fair  and  reasonable,  12, 

22,  p.  437. 
to  examine  books,  etc.,  of  transportation  companies,  12,  22, 

p.  437. 
to  hear  and  determine  complaints,  12,  22,  p.  437. 
to  enforce  decisions  and  correct  abuses,  12,  22,  p.  437. 
to  report  to  governor  annually,  12,  22,  p.  437. 
legislature  may  confer  further  powers,  12,  22,  p.  434. 
or  may  remove  one  or  more  of  them,  12,  22,  p.  437. 
vacancies  may  be  filed  by  governor,  12,  22,  p.  437. 
appointee,  term  of  office  of,   12,  22,  p.  437. 
first  election  of  districts  allotted,  12,  23,  p.  443. 
RAILROAD    COMPANIES— may    connect    at    state    line    with 

foreign  corporations,  12,  17,  p.  '432. 
may  intersect,  connect,  or  cross  other  railroads,  12,   17.  p. 

432. 
delay  and  discrimination  prohibited,  12,  17,  p.  432. 
officer,  agent,  or  employee  not  to  be  interested  in  furn'sliing 

with  materials  and  supplies,  12,  18,  p.  433. 
nor  when  leased,  12,  18,  p.  433. 

not  to  grant  free  passes  to  state  officials,  12,  19,  p.  434. 
or  passes  or  tickets  at  a  discount,  12,  19,  p.  434. 
not  to   combine  with  carriers  to  share  earnings  in  certain 

cases,   12,  20,  p.  434. 
rates   when   lowered   cannot   be   raised   without   consent   of 

government,  12,  20,  p.  434. 
government  to  regulate  fares  and  freights,  12,   20,  p.  434. 
no  discrimination  between  places  or  persons,  12,  21,  p.  435. 
fares  and  freights  to  any  station  not  to  exceed  those  to  a 

more  distant  station,  12,  21,  p.  435. 
excursion  and  commutation  tickets  at  special  rates,  12,  21, 

p.  435. 
state  to  be  divided  into  three  railroad  districts,  12,  22,  p. 

437. 


778  INDEX. 

EAILEOAD  COMPANIES— and  commissioners  elected  for  each, 

Art.  12,  Sec.  22,  p.  441. 
fine  for  failure  to  comply  with  regulations  of  commission- 
ers, 12,  22,  p.  437. 
fine  and  imprisonment  of  officers  of  company,  12,  22,  p.  437. 
exemplary  damages  for  excessive  charges,  12,  22,  p.  437. 
temporary  districts,  12,  23,  p.  443. 
legislature  to  enforce  provisions,  12,  24,  p.  445. 
property  of,  how  assessed,  13,  10,  p.  476. 
apportionment   of  values,  13,  10,  p.  476. 
RAILROAD   DISTRICTS— state   to   be  divided  into  three,   12, 
22,  p.  437. 
temporary  allotment,  12,  23,  p.  443. 
RAILROADS — how  assessed  for  taxation,  13,  14,  p.  480. 
RATES  OP   CHARGES— by  corporations,   regulation   of,  4,  33, 
p.  178. 
on  railroads,  provisions  concerning,   12,  20,  p.  434. 
to  be  fixed  by  railroad  commissioners,  12,  22,  p.  437. 
REAL  ACTIONS— where  to  be  brought,  6,  5,  p.  227. 
REAL  ESTATE — restriction  on  tenure  by  corporation.  12,  9,  p. 
424.  ^        ^  >      >    >  y 

REBELLION  OR  INVASION— suspension  of  habeas  corpus,  1, 
5,  p.  9. 
power  of  governor  to  suppress  or  repel,  8,  1,  p.  276. 
RECALL— 23,  1,  p.  564. 

RECEIPTS    AND     EXPENDITURES— to    be    published    with 
laws,  4,  22,  p.  133. 

RECESS    OF    LEGISLATURE— restriction,    payment    of    mem- 
bers, 4,  14,  p.  123. 

RECOGNIZANCES — obligations,    etc.,    unaffected    by    adoption 
of  new  constitution,  22,  2,  p.  554. 

RECOMMENDATIONS— to    be    made    by    governor    at    every 
session,  5,  10,  p.  188. 

RECORD — of  official  acts  to  be  kept  by  secretary  of  state,  5, 
18,  p.  193. 
to  be  kept  by  railroad  companies,  12,  22,  p.  437. 

RECORDER  OF  DEEDS— duty  as  to  city  charters,  11,  8,  p.  336. 

REDRESS  OF  GRIEVANCES— right  of  petition,  1,  10,  p.  17. 

REFERENDUM — reference  of  laws  to  the  people,  4,  1,  p.  86. 


INDEX.  779 

REFORMATORY     INSTITUTIONS— legislature     to     prescribe 
rules,  Art.  10,  Sec.  2,  p.  294. 

REGISTRAR— of  voters,  in   San  Francisco,  duty  of,   22,   6.   p. 
558. 

REGULATION — of   court    practice,    special    legislation    prohib- 
ited, 4,  25,  p.  151. 
of  rates  of  telegraph,  gas,  etc.,  companies,  4,  33,  p.  178. 
of  fares  and  freights  on  railroads,  12,  22,  p.  437. 
RELATION— of  state  to  American  Union,  1,  3,  p.  7. 
RELEASE    OF    DEBT    OR    OBLIGATION— special    legislation 

prohibited,  4,  25,  p.   151. 
RELIGION — free  exercise  of  secured,  1,  4,  p.  7. 

test  of  not  to  apply  to  vt'itness  or  juror,  1,  4,  p.  7. 

aid  to  private   corporations   and  institutions   prohibited,  4, 

22,  p.  133. 
aid  to  sect  and  creed  prohibited,  4,  30,  p.  171. 
RELIGIOUS  FREEDOM— guaranteed,   1,  4,  p.  7. 
RELIGIOUS  SECT— appropriations  prohibited,  4,  30,  p.   171. 
RELIGIOUS  TEST— not    required    of    witness    or    juror,    1,    4, 
p.  7. 

RELIGIOUS  WORSHIP— property     used     for,     exempt     from 
taxation,  13,  1%,  p.  464. 

REMEDIES — when  cannot  be  impaired,  p.   54. 
REMOVAL— of  judicial  officer,  6,  10,  p.  254. 

of  Chinese  from  cities  or  towns,   19,  4,  p.  530. 

of  supreme  court  reporter,  6,  21,  p.  270. 

of  presiding  judge  in  San  Francisco,  6,  6,  p.  248. 
REPORTER    OF   SUPREME    COURT— appointment    of,   6,    21, 
p.  270. 

salary  and  term  of  office,  6,  21,  p.   270. 
REPRESENTATION— in  legislature,  4,  6,  p.  117. 
REPRIEVES— power  of  governor  to  grant,  7,  1,  p.  274. 
RESERVED  RIGHTS- of  the  people,  1,  23,  p.  67. 
RESIDENCF>— for  purpose  of  voting,  what  not  to  affect,  2,  4, 
p.  77. 

not  affected  by  absence  on  public  business,  20,  12,  p.  539. 
RESIGNATION— of  governor,  who  to   act,  5,   16,  p.   190. 


780  INDEX. 

RETROSPECTIVE  STATUTES— validity  of,  p.  54. 
RETURN— of  bill  by  governor,  4,  16,  p.  125. 
RETURNS  OF  ELECTION— for  governor,  5,  4,  p.  183. 

on  revision  of  constitution,   18,  2,  p.  526. 
REVENUE  AND  TAXATION— 13,  1,  p.  447. 

property  to  be  taxed  in  proportion  to  its  value,   13,  1,  p. 

447. 
property  to  include   money,    credits,    bonds,    etc.,    13,    1,   p. 

447. 
what  property  exempt,  13,  1,  p.  447. 
deduction    from   credits    of    debts    due    residents    of    state, 

13,  1,  p.  447. 
lands   and   improvements   to  be   separately  assessed,   13,   2, 

p.  464. 
lands  similarly  situated  and  of  equal  value  to  be  assessed 

■at  same  value,  13,  2,  p.  464. 
to   be   assessed   hy   sections   and   fractions   of   sections,   13, 

3,  p.  465. 

mortgage,  deed  of  trust,  etc.,  deemed  an  interest  in  prop- 
erty, 13,  4,  p.  465. 

exceptions  in  favor  of  railroad  and  other  quasi  corpora- 
tions,  13,  4,  p.  465. 

tax  a  lien  on  property  and  securities,  13,  4,  p.  465. 

if  paid  by  owner  of  security,  becomes  part  of  debt,  13,  4, 
p.  465. 

if  paid  by  owner,   to   be   deducted   from   secured   debt,    13, 

4,  p.  465. 

contracts  by  debtor  to  pay  tax  on  the  security  void,  13,  5, 

p.  468. 
power   to   tax   not   to   be  surrendered   or   suspended,   13,   6, 

p.  470. 
legislature   may   provide   for   payment   by   installments,   13, 

7,  p.  470. 

See  Assessment;   Taxation. 
REVISION  OF  CONSTITUTION— 18,  1,  p.  525. 

two-thirds  vote  of  each  house  necessary  to  command,  18,  2, 

p.  526. 
convention  for  revision,  when  to  be  elected,   18,  2,  p.  526. 
of  what  to  consist,  18,  2,  p.  526. 
delegates,  when  to  meet,  18,  2,  p.  526. 
result  to  be  submitted  to  vote  of  people,  18,  2,  p.  526. 


INDEX.  781 

EEVISION    OP    CONSTITUTION-  — returns    and    proceedings 
thereon,  Art.  18,  Sec.  2,  p.  526. 

executive  to   declare  result,   IS,  2,  p.  526. 

majority  of  votes  required  to  ratify,  18,  2,  p.  526. 
EIGHT— inalienable,  1,  1,  p.  3. 

of  witnesses,  1,  6,  p.  9. 

to  bail,  1,  6,  p.  9. 

right  of  free  assemblage,  1,  10,  p.  17. 

of  accused  in  criminal  proceedings,  1,  13,  p.  23. 

of  foreign  residents,   1,  17,  p.  61. 

of  security  from  search  and  seizure,   1,  19,  p.   63. 

enumeration  not  to  impair  others  retained,  1,  23,  p.  67. 

right  of  suffrage,  2,  1,  p.  69. 

Chinese  excluded  from,  2,  1,  p.  69. 

privilege  of  electors,  2,  2,  p.  73, 

from  military  duty,  2,  3,  p.  77. 
EIGHT  OF  WAY— appropriation   of,   1,   14,  p.  42. 

on  navigable  waters  not  to  be  olDstructed,  15,  2,  p.  515. 
EOADS — local  and  special  legislation  prohibited,  4,  25,  p.   151. 
EULES   OF   PEOCEEDING— each   house   to    regulate,   4,   9,   p. 
121. 

SABBATH — power   to   regulate   observance   of,   1,   1,   p.   3. 
SACEAMENTO— the  seat  of  government,  20,  1,  p.  532. 

two  superior  judges  to  be  elected,  6,  6,  p.  248. 

salary  of,  6,  17,  p.  263. 
SAFETY  AND  HAPPINESS— right  to  pursue,  1,  1,  p.  3. 
SALARIES — of    officers,    special    legislation    prohibited,    4,    25, 
p.   151. 

of  governor,  5,  19,  p.  193. 

of  certain  officers  to  be  fixed  by  legislature,  5,  19,  p.  193. 

of  justices  of  supreme  court,  6,  17,  p.  263. 

to  be  paid  by  state,  6,  17,  p.  263. 

of  judges  of  superior  court,  6,  17,  p.  263. 

half  to  be  paid  by  state  and  half  by  county,  6,  17,  p.  263. 

of  reporter  of  supreme  court,  6,  21,  p.  270. 

of  justices    and    judges,    conditions    precedent    to    drawing 
of,  6,  24,  p.  272. 

of  superintendents  of  public  instruction.  9,  2,  p.  279. 

of  railroad  commissioners,   12,  22,  p.  437. 


782  INDEX. 

SaN  FRANCISCO — to  have  twelve  superior  judges,  Art.  6,  Sec. 
6,  p.  248. 
ODe  to  be  chosen  to  preside,  6,  6,  p.  248. 
salary  of,  6,  17,  p.  263. 
sessions  of  superior  courts,  6,  6,  p.  248. 
bonded  indebtedness  of,  11,  18,  p.  396. 
SANITARY   REGULATIONS— city,   county,   or  town   may   en- 
force, 11,  11,  p.  372. 
SAN  JOAQUIN — to  have  two  superior  judges,  6,  6,  p.  248. 

salary  of,  6,  17,  p.  263. 
SAN  JOSE— bonded   indebtedness   of,   11,   18,   p.   396. 
SANTA  CLARA — to  have  two  superior  judges,  6,  6,  p.  248. 
salary  of,  6,  17,  p.  263. 
bonded  indebtedness  of,  11,  18,  p.  396. 
SCHOOL   DISTRICT— officers   cannot   be   regulated   by   special 
laws,  4,  25,  p.  151. 
prohibited   from   aiding   religious    sect   or   creed,   4,   30,   p. 

171. 
restriction  as  to  incurring  indebtedness,  11,  18,  p.  396. 
SCHOOL  FUNDS — proceeds  of  land  sold,  etc.,  to  constitute,  9, 
4,  p.  280. 
applied  exclusively  to  primary  and  grammar  schools,  9,  G, 

p.  282. 
poll  tax  to  be  paid  into,  13,  12,  p.  479. 
SCHOOL  LANDS— sale  of,  9,  4,  p.  280. 

SCIENTIFIC  IMPROVEMENT— to  be  promoted,  9,  1,  p.  278. 
SEAL  OF  STATE— in  custody  of  governor,  5,  13,  p.  189. 

SEARCHES  AND   SEIZURES— unreasonable  prohibited,   1,  19, 
p.  63. 

warrant  to  issue  only  on  probable  cause,  1,  19,  p.  63. 
SEAT  OF  GOV-ERNMENT— at  Sacramento,  20,  1,  p    532. 

provision  for  change  of,  20,  1,  p.  532. 

SECRETARY   OF   STATE— subject   to   impeachment,   4,    18,   p. 
129. 
to  countersign  grants  and  commissions,  5,  14,  p.  189. 
mode  and  time  of  election  of,  5,  17,  p.  191. 
term  of  office,  5,   17.  p.  191. 
to  keep  record  of  official  acts,  5,  18,  p.  1*93. 
duties  of,  5,  18,  p.  193. 


iNDEi.  ?83 

SECRETARY  OF  STATE — compensation  for  services,  Art.  5, 
Sec.  19,  p.  193. 
duty  as  to  city  charters,  11,  8,  p.  336. 

to  canvass  returns  on  revision  of  constitution,  18,  2,  p.  526. 
to   furnish   paper   for   ballots   for   new   constitution,   22,   5, 
p.  557. 
SECTARIAN   INFLUENCES— university   excluded   from,   9,   9, 

p.  288. 
SECTARIAN  PURPOSES— appropriations   prohibited,  4,  30,  p. 

171. 
SECTARIAN  SCHOOLS— to  receive  no  public  aid,  9,  8,  p.  287. 
SECURITIES— taxation  of,  13,  4,  p.  465. 
how  assessed,  13,  4,  p.  465. 

contract  of  debtor  to  pay  tax  void,  13,  5,  p.  468. 
SECURITY — from    unreasonable    searches    and    seizures,    1,    19, 

p.  63. 
SEIZURES— unreasonable   prohibited,   1,   19,   p.   63. 
SENATE — legislative  powers  vested  in,  4,  1,  p.  86. 
number  of  members  of,  4,  5,  p.  116. 
a  court  of  impeachment,  6,  1,  p.  196. 
may  remove  justices  or  judges,  6,  10,  p.  254. 
SENATOR  OF  UNITED  STATES— governor  disqualified  for,  5, 

20,  p.  195. 
SENATORIAL     AND      ASSEMBLY     DISTRICTS— division   of 

state,  4,  6,  p.  117. 
SENATORS— when  and  how  chosen,  4,  4,  p.  116. 
term  of  office,  4,  4,  p.  116. 
number  of,  4,  5,  p.  116. 
allotment  of,  4,  5,  p.  116. 
to  try  all  impeachments,  6,  1,  p.  196. 
to  be  on  oath,  4,  17,  p.  128. 
for  what  offices  disqualified,  4,  19,  p.  130. 
to  be  under  oath  or  affirmation,  6,  1,  p.  196. 
SENTENCE — power  of  governor  to  suspend  execution  of,  7,  1, 

p.  274. 
SEPARATE  PROPERTY— of  husband  and  wife,  20,  8,  p.  537. 
SERVANT  OF  STATE — not  to  receive  extra  compensation,  4, 
32,  p.  176. 


784  INDEX. 

SESSIONS   OF   LEGISLATURE— when   to    commence,   Art.  4, 
Sec.  2,  p.  114. 
limitation  of,  4,  2,  p.   114. 
to  be  open,  except,  4,  13,  p.  123. 
of  superior  courts,  6,  7,  p.  249. 
of  superior  courts  in  San  Francisco,  6,  6,  p.  248. 

SEX — not  to  disqualify  for  pursuit  of  lawful  business,  20,  18, 
p.  547. 
not  to  disqualify  for  admission  into  colleges,  20,  18,  p.  547. 
not  to  debar  from  admission  to  university,  9,  9,  p.  288. 

SHAEES  OF  STOCK— contracts  for  sale  on  margin  void,  4,  26, 
p.  167. 
legislature  may  regulate  purchase  and  sale  of,  4,  26,  p.  167. 

SHERIFF— legislature  to  provide  for  election  of,  11,  5,  p.  303. 

SINKING  FUND — to  be  created  to  meet  interest  and  debts,  11, 
18,  p.  396. 

SLAVERY— prohibited,  1,  18,  p.  61. 

coolieism  declared  a  form  of,  19,  4,  p.  530. 

SOLDIERS — not  to  be  quartered  in  time  of  peace,  1,  12,  p.  23. 

SONOMA — two  superior  judges  to  be  elected,  6,  6,  p.  248. 
salary  of  judges,  6,  17,  p.  263. 

SPEAKER  OF  ASSEMBLY— duty  on  election  returns  for  gov- 
ernor, 5,  4,  p.  183. 

SPECIAL  ACTS — prohibited  in  certain  cases,  4,  25,  p.  151. 

SPECIAL  ASSESSMENTS— for  city  improvements,  11,  19,  p.  403. 

SPECIAL  COMMISSION— powers  not  to  be  delegated  to,  11,  13, 
p.  390. 

SPECIAL  LEGISLATION— in  certain  matters  prohibited,  4,  25, 
p.  151. 
prohibited  where  general  laws  apply,  4,  25,  p.  151. 

SPECIAL    PRIVILEGES    AND    IMMUNITIES— restriction    on 
grant,  1,  21,  p.  64. 
when  validity  to  cease,  12,  6,  p.  422. 

SPECIAL  RIGHTS — cannot  be  granted  by  special  acts,  4,  25,  p. 
151. 

SPECIAL  SESSIONS— of  legislature,  how  convened,  5,  9,  p.  188. 
power  to  act  in,  5,  9,  p.  188. 


INDEX.  '  785 

SPECIAL  STATUTE— not  to  create  municipal  corporation,  Art. 

11,  Sec.  6,  p.  310. 
SPEECH— liberty  of  secured,  1,  9,  p.  16. 
STANDING   ARMY— not  to  be  kept  in  time  of  peace,  1,  12,  p. 

23. 
STATE— a  part  of  the  Union,  1,  3,  p.  7. 

police  powers,  of,  4,  1,  p.  86. 

subdivision  into  senatorial  and  assembly  districts,  4,  6,  p.  117. 

authority  over  institutions  supported  by  state  aid,  4,  22,  p.  133. 

prohibited  to  subscribe  for  corporation  stock,  4,  31,  p.  172. 

not  to  lean  its  credit,  12,  13,  p.  428. 

nor  subscribe  for  corporation  stock,  12,  13,  p.  428. 

to  be  divided  into  three  railroad  districts,  12,  22,  p.  437. 

property  of  exempt  from  taxation,  13,  1,  p.  447. 

to  replace  university  fund,  9,  9,  p.  288. 

counties  as  subdivisions  of,  11,  1,  p.  297. 

division  into  railroad  districts,  12,  22,  p.  437. 

control  of  water  rights,  14,  1,  p.  508. 

suits  against,  20,  6,  p.  536. 

boundary  of,  21,  p.  550. 
STATE  BOARD  OF  EQUALIZATION— constitution  of,  13,  9,  p. 
471. 

election,  qualification,  and  term  of  office,  13,  9,  p.  471. 

duties  of  oflSce,  13,  9,  p.  471. 

to  assess  railroads  and  their  property,  13,  10,  p.  476. 
STATE  BOARD  OF  HEALTH— legislature  to  provide  for,  20,  14, 

p.  540. 
STATE  CONSTITUTIONS— defined,  p.  vii. 

interpretation  and  construction,  p.  vii. 

construction  of  terms,  p.  vii. 

provisions,  mandatory  and  prohibitory,  1,  22,  p.  66. 
STATE  CONTRACTS — power  of  taxation  not  to  be  surrendered, 

13,  6,  p.  470. 
STATE    INDEBTEDNESS— restriction   on    power   of    legislature, 
16,  1,  p.  517. 

limit  to  aggregate  debt,  16,  1,  p.  517. 

provisions  to  be  made  to  pay  interest,  16,  1,  p.  517. 

as  well  as  for  princij)al,  16,  1,  p.  517. 

provisions  as  to  laws  creating  debts,  16,  1,  p.  517. 
Congtitution — 50 


786  INDEX. 

STATE  INSTITUTIONS  AND  PUBLIC  BUILDINGS— alone  en- 
titled to  appropriations,  Art.  10,  Sec.  1,  p.  293. 

STATE  LANDS— to  be  granted  only  to  actual  settlers,  17,  3,  p. 
522.  >       '     >  If 

parcels  not  to  exceed  three  hundred  and  twenty  acres,  17,  3,  p. 
522. 

STATE  OFFICERS— subject  to  impeachment,  4,  18,  p.  129. 

election  and  term  of  office,  5,  17,  p.  191. 

compensation  of,  5,  19,  p.  193. 

not  to  accept  free  passes  on  railroads,  12,  19,  p.  403. 
STATE  PRISON  DIRECTORS— board  of,  10,  1,  p.  293. 

of  whom  to  consist,  10,  1,  p   293. 

term  of  office,  10,  1,  p.  293. 

classification  of,  10,  1,  p.  293. 

term  of  appointee  to  vacancy,  10,  1,  p.  293. 

to  have  charge  of  state  prison,  10,  2,  p.  294. 

duties  of,  10,  2,  p.  294. 

to  appoint  warden  and  clerk,  10,  3,  p.  294. 

or  remove  them  for  cause,  10,  3,  p.  294. 

no  compensation  other  than  expenses  incurred,  10,  4,  p.  294. 

powers  and  duties  to  be  regulated  by  law,  10,  5,  p.  295. 

convict  labor  to  be  regulated,  10,  6,  p.  295. 
STATE  SCHOOL  TAX— to  be  applied  exclusively  to  primary  and 

grammar  schools,  9,  6,  p.  282. 
STATE  TAXES — municipal  corporations  not  to  be  released,  11,  10, 
p.  371. 

See  Revenue  and  Taxation. 
STATEMENT  OF  RECEIPTS  AND  EXPENDITURES  TO  BE 
PUBLISHED— 4,  22,  p.  133. 

of  taxable  property  to  be  made,  13,  8,  p.  470. 
STATUTES — enacting  clause  of,  4,  1,  p.  86. 

validity  of,  p.  xi. 

in  part  invalid,  p.  xv. 

power  to  declare  unconstitutional,  p.  x. 

creating  state  debts,  provisions  in,  16,  1,  p.  517. 

constitutionality  of,  p.  xiv. 
STOCK  BOARD— legislature  to   control  sales  of  stock,  4,  26,  p. 

167. 
STOCK  EXCHANGE— to  be  subject  to  control  of  legislature,  4, 
26,  p.  167. 


INDEX.  787 

STOCK  MAEKET— legislature  to  control  sales  of  stocks,  Art.  4, 
Sec.  26,  p.  167. 

STOCK  OR  BONDS — of  corporation,  restriction  on  issue,  12,  11, 
p.  426. 
fictitious  increase  void,  12,  11,  p.  426. 

STOCK  OF  CORPORATIONS— state  prohibited  from  subscribing 
for,  4,  31,  p.  172. 
not  to  be  issued  except  for  money,  labor,  etc.,  12,  11,  p.  426. 
fictitious  increase  to  ht  "oid,  12,  11,  p.  426. 
state  not  to  be  interested  in,  12,  13,  p.  428. 
office  to  be  maintained  for  transfer  of,  12,  14,  p.  428. 
subject  to  assessment  for  taxation,  13,  1,  p.  447. 

STOCKHOLDER — incompetent  to  appointment  to  regulate  charges, 
4,  33,  p.  178. 

individual  and  personal  liability  of,  12,  3,  p.  414. 

in  international  exposition  corporation,  12,  3,  p.  414. 

rights  on  voting  for  managers  or  directors,  12,  12,  p.  427. 

to  have  free  access  to  books,  etc.,  of  corporation,  12,  14,  p. 
428. 

subscription  to  be  kept  in  books,  12,  14,  p.  428. 

STOCKS— taxable,  13,  1,  p.  447. 

STORAGE — charges  to  be  regulated  by  legislature,  4,  33,  p.  178. 

STREET  ASSESSMENTS— pp.  11,  19,  p.  404. 

STREETS — proceedings  for  improvement  of,  11,  19,  p.  403. 
estimate  of  costs  and  expenses,  11,  19,  p.  403. 
assessment  in  proportion  to  benefits,  11,  19,  p.  403. 
to  be  first  collected  and  paid  into  treasury,  11,  19,  p.  403. 
may  be  used  by  gas  and  water  companies,  11,  19,  p.  403. 
municipality  to  regulate  rates  for  gas  and  water,  11,  19,  p. 
403. 

STREETS  AND   ALLEYS— local  and  special  legislation   prohib- 
ited, 4,  25,  p.  151. 

STUDENT — absence  not  to  prejudice  right  to  vote,  2,  4,  p.  77. 

STYLE— of  process,  6,  20,  p.  270. 

SUBJECT  OF  ACT— to  be  embraced  in  title,  4,  24,  p.  141. 

SUBSCRIPTION— to  stock  to  be  entered  on  books,  12,  14,  p.  428. 


788  INDEX. 

SUCCESSION"— special  legislation  prohibited,  Art.  4,  Sec.  25,  p. 

151. 
SUFFRAGE— right  to,  who  entitled,  2,  1,  p.  69. 
who  prohibited,  2,  1,  p.  G9. 
privilege  of  electors,  2,  2,  p.  73. 

persons  convicted  of  crimes  disqualified  from,  20,  11,  p.  538. 
freedom  of,  to  be  protected,  20,  11,  p.  538. 
SUITS  AGAINST  STATE— subject  to  direction  of  law,  20,  6,  p. 
536. 

SUNDAY  LAWS — power  of  state  to  enact,  p.  6. 
SUPERINTENDENT  OF  PRINTING— to  furnish  copies  of  new 
constitution,  22,  4,  p.  556. 
to  furnish  ballots  for,  to  county  clerks,  22,  5,  p.  557. 
GUPERINTENDENT  OF  PUBLIC  INSTRUCTION— an  execu- 
tive officer,  9,  3,  p.  279. 
to  be  elected,  9,  3,  p.  279. 
when  elected,  22,  10,  p.  560. 
salary,  when  to  enter  on  office,  9,  2,  p.  279. 
CUPERINTENDENT  OF  SCHOOLS— for  county,  election  of,  9, 
3,  p.  279. 
two  or  more  counties  may  unite,  9,  3,  p.  279. 
SUPERINTENDENT   OF  STREETS— control  of  use  of  streets, 
11,  19,  p.  403. 

SUPERIOR  COURT— invested  with  judicial  power,  6,  1,  p.  196. 
appellate  jurisdiction  of,  6,  5,  p.  227. 
jurisdiction  of,  6,  5,  p.  227. 
power  of  naturalization,  6,  5,  p.  227. 
appellate  jurisdiction  from  justice's  court,  6,  5,  p.  227. 
always  open,  certain  days  excepted,  6,  5,  p.  227. 
may  issue  writs,  6,  5,  p.  227. 
for  each  county,  6,  6,  p.  248. 
judges  may  apportion  business,  6,  7,  p.  249. 
judges  of  different  counties  may  interchange,  6,  8,  p.  251. 
provision  for  judge  pro  tempore,  6,  8,  p.  251. 
judge  pro  tempore  to  be  a  member  of  the  bar,  6,  8,  p.  251. 
to  be  a  court  of  record,  6,  12,  p.  260. 
to  appoint  commissioners,  6,  14,  p.  261. 
salary  of,  when  payable,  6,  17,  p.  263. 
judges  not  eligible  for  other  office,  6,  23,  p.  272. 
not  to  practice  la.w,  6,  22,  p.  272. 


INDEX.  789 

SUPEEVISOES— legislature  to  provide  for  election  of,  Art.  11, 
Sec.  5,  p.  303. 

classification  of,  11,  7,  p.  371. 

constitute  county  boards  of  equalization,  13,  9,  p.  471. 

duties  and  authority  of,  13,  9,  p.  471. 

duty  as  to  common  schools,  9,  7,  p.  284. 

as  to  examination  of  teachers,  9,  7,  p.  284. 

to  fix  water  rates,  14,  1,  p.  508. 

compulsory  process  on  failure,  14,  1,  p.  508. 
SUPREME  COURT— invested  with  judicial  powers,  6,  1,  p.  19G. 

to  consist  of  chief  justice  and  six  justices,  6,  2,  p.  200. 

may  sit  in  departments  or  in  bank,  6,  2,  p.  200. 

to  be  always  open,  6,  2,  p.  200. 

to  be  divided  into  departments  one  and  two,  6,  2,  p.  200. 

justices  to  be  assigned,  6,  2,  p.  200. 

competent  to  sit  in  either  department,  6,  2,  p.  200. 

may  freely  interchange,  6,  2,  p.  200. 

each  department  to  bear  and  determine  causes,  6,  2,  p.  200. 

three  justices  necessary  to  act,  6,  2,  p.  200. 

justice  may  act  at  chambers,  6,  2,  p.  200. 

concurrence  of  three  necessary  to  judgment  6,  2,  p.  200. 

chief  justice  to  apportion  business,  6,  2,  p.  200. 

may  order  question  heard  in  bank,  6,  2,  p.  200. 

either  before  or  after  judgment,  6,  2,  p.  200. 

order  to  be  made  within  thirty  days,  6,  2,  p.  200. 

and  concurred  in  by  two  justices,  6,  2,  p.  200. 

its  effect  is  to  vacate  judgment,  6,  2,  p.  200. 

four  justices  may  order  hearing  in  bank,  6,  2,  p.  200. 

judgment  final  if  order  not  made  in  time,  6,  2,  p.  200. 

judgment  by  department  not  final  till  thirty  days,  6,  2,  p.  200. 

unless  approved  by  chief  justice  and  two  justices,  6,  2,  p.  200. 

chief  justice  may  convene  court  in  bank  at  any  time,  6,  2,  p. 
200. 

to  preside,  6,  2,  p.  200. 

concurrence  of  four  necessary  for  judgment,  6,  2,  p.  200. 

if  four  do  not  concur  all  qualified  must  sit,  6,  2,  p.  200. 

and  concurrence  of  four  necessary  to  judgment,  G,  2,  p.  200. 

decisions  in  all  cases  to  be  in  writing,  6,  2,  p.  200. 

and  grounds  to  be  set  forth.  6,  2,  p.  200. 

chief  justice  may  preside  in  either  department,  6,  2,  p.  200. 

justices  assixrnpd  t^  «wl<j»*  one  to  preside,  6,  2,  p.  200. 


790  INDEX. 

SUPEEME  COUET— when  may  select  cliief  justice,  Art.  6,  Sec. 
2,  p.  200. 

•when  chief  justice  and  justices  to  be  elected,  6,  3,  p.  204. 

term  of  ofSce,  6,  3,  p.  204. 

justices  first  elected  to  classify  by  lot,  6,  3,  p.  204. 

so  as  to  vacate  two  seats  every  four  years,  6,  3,  p.  204. 

entry  of  classification  on  minutes,  6,  3,  p.  204. 

and  to  be  filed  with  secretary  of  state,  6,  3,  p.  204. 

in  case  of  vacancy  governor  to  appoint,  6,  3,  p.  204. 

first  election  under  new  constitution,  6,  3,  p.  204. 

opinions  to  be  published,  6,  16,  p.  263. 
SUPREME  COURT  COMMISSION— 6,  25,  p.  273. 
SURVEYOR  GENERAL— subject  to  impeachment,  4,  18,  p.  129. 

mode  and  time  of  election,  5,  17,  p.  191. 

compensation  of,  5,  19,  p.  193. 

legislature  may  abolish  office,  5,  19,  p.  193. 
SUTTER— a  superior  judge  to  be  elected,  6,  6,  p.  248. 

salary  of  judge,  6,  17,  p.  263. 

TAX — appellate  jurisdiction  of  supreme  court,  6,  4,  p.  205. 
original  jurisdiction  of  superior  court,  6,  5,  p.  227. 
commutation  of  prohibited,  11,  10,  p.  371. 
assessment  and  collection  by  municipal  corporations,  11  12, 

p.  386. 
TAXATION — local  and  special  legislation  prohibited,  4,  25,  p.  151. 
property  cannot  be  exempted  by  special  acts,  4,  25,  p.  151. 
assessment  of  revenue  under  township  organization,  11,  4,  p. 

301. 
for  municipal  purposes,  restriction  of  legislature,  11,  12,   p. 

386. 
municipal  corporations  may  be  invested  with  powers  of,  11, 

12,  p.  386. 
to  be  in  proportion  to  values,  13,  1,  p.  447. 
United  States  army,  etc.,  13,  1^/4,  p.  463. 
churches  exempt,  13  1%,  p.  464, 
bonds,  exempt,  13,  1%,  p.  464. 
what  property  taxable,  p.  449. 
valuation  of  property,  p.  449. 
for  public  improvements,  p.  460. 
assessment  according  to  value,  p.  449. 
exemption  from,  p.  456. 


INDEX.  791 

TAXATION— licenses,  p.  459. 

land  and  improvements  to  be  separately  assessed,  13,  2,  p.  464, 

of  sectionized  and  unsectionized  lands,  13,  3,  p.  465. 

eecurities  taxable,  13,  4,  p.  465. 

a  lien  on  property  and  securities,  13,  4,  p.  465. 

contract  to  pay  tax  on  loan  void,  13,  5,  p.  468. 

power  of,  cannot  be  surrendered  in  grant  or  contract,  13,  6,  p. 
470. 

payment  by  installments,  13,  7,  p.  470. 

Bworn  statement  to  be  given  annually,  13,  8,  p.  470. 

of  property  held  at  a  certain  day  and  hour,  13,  8,  p.  470, 

state  board  of  equalization  to  be  elected,  13,  9,  p.  471. 

county  board  of  equalization,  who  constitute,  13,  9,  p.  471. 

duties  of  board,  13,  9,  p.  471. 

property,  where  assessed,  13,  10,  p.  476. 

state  board  to  assess  property  of  railroads  in  more  than  one 
county,  13,  10,  p.  476. 

and  apportion  amount  among  the  counties,  13,  10,  p.  476. 

in  proportion  to  number  of  miles  in  each,  13,  10,  p.  476, 

income  taxes  may  be  assessed,  13,  11,  p.  479. 

annual  poll  tax  may  be  levied,  13,  12,  p.  479. 

legislature  to  carry  out  constitutional  provisions,  13,  13,  p.  480. 

of  railroads,  etc.,  13,  14,  subd.  a,  p.  481. 

of  insurance  companies,  13,  14,  subd.  b,  p.  483. 

of  banks,  13,  14,  subd.  c,  p.  484. 

of  franchises,  13,  14,  subd.  d,  p.  486. 

for  public  schools,  13,  14,  subd.  e,  p.  487. 

for  the  state  university,  13,  14,  subd.  e,  p.  487. 

•when  due,  etc.,  13,  14,  subd.  f,  p.  487. 

no  injunction  against,  13,  14,  subd.  g,  p.  489, 

recovery  of  taxes,  13,  14,  subd.  g,  p.  489. 

See  Assessment ;  Revenue  and  Taxation. 
TAXPAYER— statement,  when  to  be  made,  13,  8,  p.  470. 
TEACHERS — examination  under  control  of  local  boards,  9,  7,  p. 
284. 

certificates  on  examination,  1,  7,  p.  284. 
TECHNICAL  SCHOOLS— may  be  established,  9,  6,  p.  282. 
TELEGRAPH  COMPANIES— legislature  may  regulate  charges,  4, 

33,  p.  178. 
TEN  DAYS — after  session  given  for  approval  of  bill,   4,   IG,   p. 
125. 


792  INDEX. 

TERM  OF  OFFICE— of  assemblymen,  Art.  4,  Sec.  3,  p.  115. 

of  senators,  4,  4,  p.  116. 

of  governor,  5,  2,  p.  1S3. 

of  lieutenant-governor,  5,  15,  p.  l^O. 

of  state  officers,  5,  17,  p.  191. 

of  justices  of  supreme  court,  6,  3,  p.  204. 

of  judges  of  superior  courts,  6,  6,  p.  248. 

of  superintendent  of  public  instruction,  9,  2,  p.  279. 

of  county  superintendent  of  schools,  9,  3,  p.  279, 

of  state  prison  directors,  10,  1,  p.  293. 

of  county  officers,  11,  5,  p.  303. 

of  city,  county,  and  township  officers,  11,  9,  p.  372. 

of  county  officers  not  to  be  extended,  11,  9,  p.  273. 

of  railroad  commissioners,  12,  20,  p.  434. 

of  state  board  of  equalization,  13,  9,  p.  471. 

not  herein  provided  to  be  declared  by  law,  20,  16,  p.  542. 

not  to  exceed  four  years  under  statute,  20,  16,  p.  542. 

when  to  commence,  20,  20,  p.  548. 

at  first  election,  20,  20,  p.  548. 
TEST — not  required  as  a  qualification  for  office,  20,  3,  p.  534. 
TESTIMONY— on  prosecution  for  lobbying,  4,  35,  p.  179. 
TEXT-BOOKS— shall  be  adopted  by  local  boards,  9,  7,  p.  284. 

not  to  be  changed  within  four  years,  9,  7,  p.  284. 
THREE-FIFTHS    VOTE— required  to  amend  city  charter,  11,  8, 

p.  336. 
THREE-FOURTHS  OF  JURY— may  render  verdict,  1,  7,  p.  11. 
TICKETS — in  lottery,  sale  of  prohibited,  4,  26,  p.  167. 

on  transportation  lines  not  to  be  given  at  a  discount,  12,  19, 
p.  434. 

free  tickets  prohibited  to  state  officers,  12,  19,  p.  434. 

exception  as  to  railroad  commissioners,  12,  21,  p.  435. 
TIDE  LANDS — owners  of  not  to  exclude  right  of  way  over  waters 
adjoining,   15,  2,  p.  515. 

within  two  miles  of  cities  or  towns  to  be  withheld  from  sale  or 
grant,  15,  3,  p.  515. 
TITLE  OF  ACT— to  express  the  subject,  4,  24,  p.  141. 
TOLLS — appellate  jurisdiction  of  supreme  court,  6,  4,  p.  205. 

original  jurisdiction  of  superior  court,  6,  5,  p.  227. 
TORTS — imprisonment  for,  1,  15,  p.  53. 
TOWN  COUNCILr- to  fix  water  rates  annually,  14,  1,  p.  508. 


INDEX.  i793 

TOWN  GOVERNMENTS— Art.  11,  Sec.  6,  p.  310. 

TOWN  PLATS— special  legislation  prohibited,  4,  25,  p.  151. 

TOWNS — may   make  police   or  sanitary  regulations,  11,   11,  p. 

legislature  may  vest  power  of  taxation  in,  11,  12,  p.  386. 

to  appoint  inspection  officers,  11,  14,  p.  393. 

money  collected  to  be  paid  into  treasury,  11,  16,  p.  394. 

restriction  on  power  to  incur  debts,  11,  18,  p.  396. 

provisions  to  be  made  for  payment,  11,  18,  p.  396. 

liabilities  of,  when  void,  11,  18,  p.  396. 

may  protect  themselves  from  alien  paupers,  19,  1,  p.  528. 

may  remove  Chinese,  19,  4,  p.  530. 

TOWNSHIP  OFFICERS— to  be  governed  by  general  laws  only, 
4,  25,  p.  151. 

TOWNSHIPS — prohibited  from  giving  or  loaning  credit,  4,  31, 

legislature  to  provide  for  organization  of,  by  general  laws, 

11,  4,  p.  301. 
assessment  and  collection  of  revenue,  11,  4,  p.  301. 
election  and  appointment  of  officers,  11,  5,  p.  303. 
may  make  police  and  sanitary  regulations,  11,  11,  p.  372. 
power  of  taxation  may  be  delegated  to,  11,  12,  p.  386. 

TRANSFER — of  corporation  stock,  where  to  be  made,   12,  14, 
p.  428. 

TRANSMISSION— of  property  rights  of  foreigner,  1,  17,  p.  61. 

TRANSPORTATION   COMPANIES— are   common    carriers,    12, 

17,  p.  432. 
right  to  connect  with  companies  at  state  line,  12,  17,  p.  432. 
delay  or  discrimination  prohibited,  12,  17,  p.  432. 
supplies  or  materials  not  to  be  furnished  by  officer  or  agent 

of  company,  12,  18,  p.  433. 
not  to  grant  free  passes  to  state  officials,  12,  19,  p.  434. 
acceptance  of  such  a  forfeiture  of  office,  12,  19,  p.  434. 
exception  as  to  railroad  commissioners,  12,  19,  p.  434. 
combination  between  prohibited,  12,  20,  p.  434. 
fares  and  freights  once  lowered  cannot  be  raised   without 

consent  of  government,  12,  20,  p.  434. 


794  INDEX. 

TEANSPORTATION  COMPANIES— government  has  power  to 

regulate  fares  aud  freights,  Art.  12,  Sec.  ZO,  p.  4oi. 
discrimination  as  to  persons  and  places  prohibited,  12,  21, 

p.  435. 
charges  to  way  stations  not  to  exceed  charges  to  stations 

beyond,  12,  21,  p.  435. 
excursion  and  commutation  tickets  may  be  at  special  rates, 

12,  21,  p.  435. 
state  to  be  divided  into  three  districts,  12,  22,  p.  437, 
a  railroad  commission  to  be  elected,  12,  22,  p.  437. 
salary  and  term  of  office,  12,  22,  p.  437. 
qualification   and   disqualification  for   the  office,   12,   22,   p. 

437. 
act  of  majority  to  be  the  act  of  all,  12,  22,  p.  437. 
powers  and  duties  of  commission,  12,  22,  p.  437. 
power  to  fix  rates  of  fares  and  freights,  12,  22,  p.  437. 
rates  fixed  deemed  fair  and  reasonable,  12,  22,  p.  437. 
penalty  for  failure  to  conform  to  rates  as  fixed,  12,  22,  p. 

437. 
imprisonment  of  officer,  agent,  etc.,  12,  22,  p.  437. 
exemplary  damages  recoverable,  12,  22,  p.  437. 
TREASON— in  what  consists,  1,  20,  p.  63. 

evidence  necessary  to  convict  of,  1,  20,  p.  63. 
reprieve  and  pardon  in  case  of,  7,  1,  p.  274. 

TREASURER— subject  to  impeachment,  4,  18,  p.  129. 

refunding  moneys,  special  legislation  prohibited,  4,  25,  p. 
151. 

mode  and  time  of  election,  5,  17,  p.  191. 

term  of  office,  5,  17,  p.  191. 

compensation  of,  5,  19,  p.  193. 

to  canvass  returns  on  revision  of  constitution,  18,  2,  p.  526. 
TREASURY — money,  when  and  how  drawn,  4,  32,  p.  176. 

members  of  legislature  to  be  paid  out  of,  4,  23,  p.  140. 

special  statute  cannot  authorize  refunding  of  money,  4,  25, 
p.  151. 

TREATY— of  Guadalupe  Hidalgo,  p.  691. 

TRIAL  BY  JURY— right  to,  1,  7,  p.  11. 

three-fourths  may  render  verdict,   1,  7,  p.  11. 

right  to  jury  may  be  waived  by  consent,  1,  7,  p.  11. 

in  criminal  cases  not  felonies,  1,  7,  p.  11. 


INDEX.  795 

TEIAL  BY  JURY — no  person  to  be  twice  in  jeopardy  of  same 
ofifense,  Art.  1,  Sec.  13,  p.  23. 
nor  compelled  to  be  witness  against  himself,  1,  13,  p.  23. 
TRIAL  FOR  LIBEL— evidence  in,  1,  9,  p.  16. 
TRIAL  OF  IMPEACHMENT— 4,  17,  p.  128. 
TRUSTEES — of    corporations    and    companies,    liable    for    em- 
bezzlement, 12,  3,  p.  414. 
TWO-TUIRDS  VOTE— required  to   pass  bill   over   veto,  4,   16, 
p.  125. 
for  conviction  on  impeachment,  4,  17,  p.  128. 
for  increasing   or   diminishing   number   of   judges,   6,   9,   p. 

253. 
for  removal  of  justices  and  judges,  6,  10,  p.  254. 
for  removal  of  county  seat,  11,  2,  p.  297. 
on  proposed  amendments  to  constitution,  18,  1,  p.  525. 
on  revision  of  constitution,  18,  2,  p.  526. 

UNAUTHORIZED  AGREEMENT— null  and  void,  4,  32,  p.  176. 
UNCULTIVATED  LANDS— at  what   value   assessed,   13,   2,   p. 

464. 
UNDUE  INFLUENCE— on  elections  prohibited,  20,  11,  p.  538. 
UNIFORM  OPERATION  OF  GENERAL  LAWS— 1,  11,  p.  18. 
UNITED  STATES— official  incompetent  to  hold  state  office,  4, 
20,  p.  131. 

property  exempt  from  taxation,  13,  1,  p.  447. 
UNITED  STATES  CONSTITUTION— p.  659. 
UNITED  STATES  SENATOR— governor  ineligible  to  office  of, 

5,  20,  p.  195. 
UNIVERSITY— appropriations,  when  prohibited,  4,  30,  p.   17L 

to  constitute  a  public  trust,  9,  9,  p.  288 

organization  and  government  of,  9,  9,  p.  288. 

legislative  control  over,  9,  9,  p.  288. 

to  be  independent  of  political  and  sectarian   control,  9,  9, 
p.  288. 

fund,  how  appropriated,  9,  9,  p.  288. 

sex  not  to  debar  admission  to,  9,  9,  p.  288. 
USE  OF  STREFsTS — by  gas  and  water  companies,  11,  19,  p.  403. 

conditions  of,  11,  19,  p.  403. 


796  INDEX. 

VACANCY— in  legislature,  how  filled,  Art.  4,  Sec.  12,  p.  123. 

in  office,  when  filled  by  governor,  5,  8,  p.    IS4. 

in  office  of  governor,  how  filled,  5,  15,  p.  190. 

to  fill  vacancy  in  justices  of  supreme  court,  6,  3,  p.  204. 

in  superior  court,  6,  6,  p.  248. 

of  state  prison  directors,  how  filled,  10,  1,  p.  293. 

in  board  of  supervisors,  by  whom  filled,  11,  7,  p.  320. 

in  office  of  railroad  commission,  12,  22,  p.  437. 
VALIDATING  ACTS— of  deeds,  wills,  etc.,  by  special  legislation, 

prohibited,  4,  25,  p.  151. 
VALIDITY— of  statutes,  p.  xi. 

when  in  part  invalid,  p.  xv. 

See  Statutes. 
VENUE — special  acts  to  change  prohibited,  4,  25,  p.  151. 
VETO — power  of  governor,  4,  16,  p.  125. 

two-thirds  of  members  elected  may  pass  bill  over,  4,  16,  p.  125. 
VIVA  VOCE — elections  by  legislature  to  be,  4,  28,  p.  171. 
VOCATION— sex  not  to  disqualify  from  following,  20,  18,  p.  547. 
VOTE — property  qualification  not  to  be  required,  1,  24,  p.  67. 

qualification  for  right  to,  2,  1,  p.  69. 

to  be  by  ballot,  2,  5,  p.  78. 

on  election  by  legislature  to  be  viva  voce,  4,  28,  p.  171. 

and  entered  on  journal,  4,  28,  p.  171. 

on  removal  of  county  seat,  11,  2,  p.  297. 

two-thirds  required,  11,  2,  p.  297. 

on  organization  of  county  governments,  11,  4,  p.  301. 

on  city  charter,  how  taken,  11,  8,  p.  336. 

three-fifths  required,  11,  8,  p.  336. 

corporations  may  cumulate  or  distribute,  12,  12,  p.  427. 

to  be  taken  on  creation  of  state  debt,  16,  1,  p.  517. 
VOTE — on  proposed  amendment  to  constitution,  18,  1,  p.  525. 

on  revision  of  constitution,  18,  2,  p.  526. 
VOTERS — property  qualification  not  required,  1,  24,  p.  67. 

who  are  and  who  are  not,  2,  1,  p.  69. 

privilege  from  arrest,  2,  2,  p.  73. 

exemption  from  militia  duty,  2,  3,  p.  77. 

residence,  test  of,  2,  4,  p.  77. 

persons  convicted  of  certain  crimes  disfranchised,  20,   11,  p. 
538. 
VOTING  MACHINES— use  of,  2,  6,  p.  78. 


INDEX.  797 

WAIVER— of  right  to  trial  by  jury,  Art.  1,  Sec.  7,  p.  11. 

WARDEN  OF  STATE  PRISON— appointment  of,  10,  3,  p.  294. 

power  to  appoint  officers  and  employees,  10,  3,  p.  294. 

duties  to  be  defined  by  legislature,  10,  5,  p.  295. 
WARRANTS— of  arrest,  issuance  of,  I,  19,  p.  63. 
WATER — right  to  introduce  into  cities,  etc.,  11,  19,  p.  403. 
WATER  AND  WATER  RIGHTS— 14,  1,  p.  508. 

appropriation  declared  a  public  use,  14,  1,  p.  508. 

subject  to  regulation  and  control  of  state,  14,  1,  p.  508. 

rates  to  be  fixed  by  supervisors  annually,  14,  1,  p.  508. 

order,  when  to  take  effect,  14,  1,  p.  508. 

peremptory  process  on  failure  to  fix  rates,  14,  1,  p.  508. 

forfeiture   of   franchise  for  collecting  other   than  established 
rates,  14,  1,  p.  508. 

right  to  collect  rates  a  franchise,  14,  2,  p.  514. 

to  be  exercised  under  authority  of  law,  14,  2,  p.  514. 

WATER  COMPANIES— in  cities,  right  to   regulate  charges,   11, 
19,  p.  403.     • 

WATER  FRANCHISE— when  liable  to  forfeiture,  14,  1,  p.  508. 

WATER  RATES— in  cities  and  towns,   to   be   fixed  annually  by 
supervisors,  14,  1,  p.  508. 
forfeiture  for  excessive  charges,  14,  1,  p.  508. 

WATER  WORKS— ground  of  forfeiture,  14,  1,  p.  508. 

WATERING  STOCKS— by  fictitious  increase,  void,  12,  11,  p.  426. 

WHARFAGE — charges   to  be  regulated   by   legislation,   4,  33,  p. 
178. 

WIFE— separate  property  of,  20,  8,  p.  537. 

WILLS — cannot  be  validated  by  special  acts,  4,  25,  p.  151. 

WITNESS — no  religious  restrictions,  1,  4,  p.  7. 
not  to  be  unreasonably  detained,  1,  6,  p.  9. 
nor  confined  with  criminals,  1,  6,  p.  9. 
deposition  of  in  criminal  cases,  1,  13,  p.  23. 
right  of  accused  to  have,  1,  13,  p.  23. 
no  person  to  be  compelled  to  testify  against  liimself,  1,  13,  p. 

23. 
concurrence  necessary  in  treason,  1,  20,  p.  63. 


798  INDEX. 

WRITS — appellate  jurisdiction  of  supreme  court,  Art.  6,  Sec.  4, 
p.  205. 
where  returnable,  b,  4,  p.  205. 

original  jurisdiction  of  superior  court,  6,  5,  p.  227. 
unaffected  by  adoption  of  new  constitution,  22,  2,  p.  554. 

YEAS  AND  NAYS— to  be  taken  on  final  passage  of  bills,  4,  15, 
p.  124. 

to  be  entered  on  minutes,  4,  15,  p.  124. 

to  be  taken  on  vote  on  proposed  amendments,  18,  1,  p.  525. 
YUBA — a  superior  judge  to  be  elected,  6,  6,  p.  248. 

salary  of  judge,  6,  17,  p.  263. 


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